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HomeMy WebLinkAbout18-157 - Global Software - Finance Budgeting and Reporting Software License AgreementCity of Tukwila 6200 Southcenter Boulevard, Tukwila WA 98188 CONTRACT FOR SERVICES Contract Number 18-157 Council Approval N/A This Contract for Services is entered into by and between the City of Tukwila, Washington, a non - charter optional municipal code city hereinafter referred to as "the City," and Global Software, LLC, hereinafter referred to as "the Contractor," whose principal office is located at 3301 Benson Drive, Suite 201, Raleigh, NC 27609. WHEREAS, the City has determined the need to have certain services performed for its citizens but does not have the manpower or expertise to perform such services; and WHEREAS, the City desires to have the Contractor perform such services pursuant to certain terms and conditions; now, therefore, IN CONSIDERATION OF the mutual benefits and conditions hereinafter contained, the parties hereto agree as follows: 1. Scope and Schedule of Services to be Performed by Contractor. The Contractor shall perform those services described on the Global Software. LLC Software License Purchase Agreement £Purchase Agreements attached hereto and incorporated herein by this reference as if fully set forth. In performing such services, the Contractor shalt at all times comply with all Federal, State, and Local statutes, rules and ordinances applicable to the performance of such services and the handling of any funds used in connection therewith. The Contractor shall request and obtain prior written approval from the City if the scope or schedule is to be modified in any way. 2. Compensation and Method of Payment. The City shalt pay the Contractor for services rendered according to the rate and method set forth on the Purchase Agreement. The total amount to be paid under the Purchase Agreement including compensable travel and living expenses shall not exceed $25,000.00. 3. Contractor Budget. The Contractor shall apply the funds received under this Contract for Services within the maximum limits set forth in this Agreement. The Contractor shall request prior approval from the City whenever the Contractor desires to amend its budget in any way. 4. puration of Agreement. This Contract for Services, Purchase Agreement and Software License Agreement (collectively the ("Agreement') shall be in full force and effect for a period commencing on the Effective Date as defined in the Purchase Agreement as the date of the last party to sign and grants to the City a perpetual license to use the Software listed in Table A of the Purchase Agreement in accordance the terms and conditions of the Software License Agreement referenced in the Purchase Agreement, unless sooner terminated under the provisions of the Agreement. 5. Jndeoendent Contractor. Contractor and City agree that Contractor is an independent contractor with respect to the services provided pursuant to this Agreement. Nothing in this Agreement shall be considered to create the relationship of employer and employee between the parties hereto. Neither Contractor nor any employee of Contractor shall be entitled to any benefits accorded City employees by virtue of the services provided under this Agreement. The City shall not be responsible for withholding or otherwise deducting federal income tax or social security or contributing to the State CA Revised December 2016 Page 1 of 4 / `� � of c2 Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to the Contractor, or any employee of the Contractor. 6. insurance. The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, their agents, representatives, employees or subcontractors. Contractor's maintenance of insurance, its scope of coverage and limits as required herein shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. A. Minimum Scope of Insurance. Contractor shall obtain insurance of the types and with the limits described below 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. Automobile liability insurance shall cover all owned, non -owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance with limits no Tess than $1,000,000 each occurrence, $2,000,000 general aggregate and $2,000,000 location aggregate limit. Commercial General Liability insurance shall be as least at broad as ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, location, stop gap liability, personal injury and advertising injury, and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide a per project general aggregate limit using ISO form CG 25 03 05 09 or an equivalent endorsement. There shall be no exclusion for liability arising from explosion, collapse or underground property damage. The City shall be named as an additional insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the City using ISO Additional Insured endorsement CG 20 26 and Additional Insured - Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing at least as broad coverage. 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. B. Other Insurance Provision. The Contractor's Automobile Liability and Commercial General Liability insurance policies are to contain, or be endorsed to contain that they shall be primary insurance with respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. C. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A: VII. D. Verification of Coverage. Contractor shall fumish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. Upon request by the City, the Contractor shall fumish certified copies of all required insurance policies, including endorsements, required in this Agreement and evidence of all subcontractors' coverage. E. Subcontractors. The Contractor shall have sole responsibility for determining the insurance coverage and limits required, if any, to be obtained by subcontractors, which determination shall CA Revised December 2016 Page 2 of 4 be made in accordance with reasonable and prudent business practices. F. Notice of Cancellation. The Contractor shall provide the City and all Additional Insureds for this work with written notice of any policy cancellation, within two business days of their receipt of such notice. G. Failure to Maintain Insurance. Failure on the part of the Contractor to maintain the insurance as required shall constitute a material breach of contract, upon which the City may, after giving five business days notice to the Contractor to correct the breach, immediately terminate the contract or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand, or at the sole discretion of the City, offset against funds due the Contractor from the City. 7. Record Keeoino and Reoortinq. A. The Contractor shall maintain accounts and records, including personnel, property, financial and programmatic records which sufficiently and properly reflect all direct travel and living costs of any nature expended and reimbursed by the City, as well as any time and material services performed in the performance of this Agreement and other such records as may be deemed necessary by the City to ensure the performance of this Agreement. B. These records shall be maintained for a period of seven (7) years after termination hereof unless permission to destroy them is granted by the office of the archivist in accordance with RCW Chapter 40.14 and by the City. 8. Audits and Insoectiong. The records and documents with respect Record Keeping and Reporting set forth in the above Section shall be subject at all times to inspection, review or audit by law during the performance of this Agreement. 9. piscrimination prohibited. The Consultant, with regard to the work performed by it under this Agreement, will not discriminate on the grounds of race, religion, creed, color, national origin, age, veteran status, sex, sexual orientation, gender identity, marital status, political affiliation, the presence of any disability, or any other protected class status under state or federal law, in the selection and retention of employees or procurement of materials or supplies. 10. Notices. Notices to the City of Tukwila shall be sent to the following address: City Clerk, City of Tukwila 6200 Southcenter Blvd. Tukwila, Washington 98188 Notices to the Contractor shall be sent to the following address 3301 Benson Drive, Suite 201. Raleigh, NC 27109 11. Aaolicable Law: Venue: Attornev's Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be properly laid in King County, Washington. The prevailing party in any such action shall be entitled to its attomey's fees and costs of suit. 12. Conflict of Terms. if any provision contained in this Agreement conflicts with any provision in any of the other document, including the Purchase Agreement and/or the Software License Agreement, the CA Revised December 2016 Page 3 of 4 provision contained in this Agreement shall govem and control. DATED this 1 sr day of O C_+C, 20 i 8 CITY OF TUKWIIA �c lam! Allan Ekberg, Mayor ATTEST/AUTHENTICATED: City Clerk, Christy O'Flaherty APPROVED AS TO FORM: 0 ice of the City Attomey CONTRACTOR By: Printed NamrJc.e and e. G► at , nos Address: 3301 Benson Drive, Suite 201 Raleigh. NC 27709 CA Revised December 2016 Page 4 of 4 w �e o SUM s M Sr =" global software globalsoftworeinc.eom Global Software, LLC Software License Purchase Agreement Order Number: Order Date: Sales Consultant: Stephen Hays Phone Number: 919.703.3172 Email: Stephen. HaysOolobalsoftwareinc.com Customer Name: City of Tukwila , _ Address: Address: City/State/Zip: Contact: Email: Phone: 6200 Southcenter Blvd. Tukwila, WA 88188 Eric Compton Eric.ComptonOtukwiiawa.clov Address: Address: City/State/Zip: Contact: Email: Phone: 6200 Southcenter Blvd. Tukwila, WA 98188 Eric Compton Eric.Compton(a?tukwilawa.aov 206.545.7574 206.545.7574 Table A: Product: Description ERP Version users- Up to Per User List Price Discount" Total - USD SS -PROFILE Profile (Tyler Tech) - Munis (Tyler Tech) 1 $1,850.00 $1,850.00 $370.00 $1,480.00 SS -GM Spreadsheet Server GM (GL, Distribution Manager) "Discounted price tied to customer providing case study-" MunisffylerTech) 5 $2,750.00 $13,750.00 $3,437.50 $10,312.50 Total Products USD $15,600.00 $3,807.50 511,792.50 "Discount- 10% Overall government institution Incentive ($1,560.00) ($1,560.00) "Discount- Sign by August 31*, 2018 Incentive "Discount- 5% Quantity Incentive tied to 5+ Gold License (687.50) "'Discount- Sign by August 3.d, 2018 training incentive ($800.00) Services: Description Location Days Per Day List Price Discount"' Total - USD Training Spreadsheet Server GL On - Site 2 $1,850.00 $3,700.00 $800.00 $2,900.00 $2,900.00 Total Services (Additional Travel & Expenses to be Wed per Section 2.2) USD Grand Total - Products & Services USD $14,692.50 Maintenance: Warranty Period: 90 Days - - Total - USD AIMS First Year Annual Improvement, Maintenance & Support (AIMS) Service o $3,432,00 Total Maintenance USD $3,432.00 Grand Total - Products, Services & 1st Year AIMS USD $18,124.60 Pricin Valid Throu Se tember 30th 2018 This Software License Purchase Agreement (this "Purchase Agreement") between Global and Customer is entered into as of the date of the last party to sign below ("Effective Date"). This Purchase Agreement sets forth the terms upon which Global and Customer have agreed relating to the licensing for use of Global's proprietary software referenced in Table A above (*Software"), and the provision of other related services by Global as set forth herein. This Purchase Agreement is incorporated into and govemed by the terms of the Global's Software License Agreement attached hereto as Attachment A and incorporated herein by reference, and the City of Tukwila Contract for Services. Capitalized terms used herein and not defined have the definition given to them in the Agreement. Del ivery/Implementation 1.1 Global will electronically deliver to Customer the Software listed in Table A above and related installation instructions and documentation as normally made available by Global in connection with the Software ("Documentation") promptly after execution of this Purchase Agreement. 1.2 Installation — The Software is to be installed by Customer. The installation process is supported through Global's normal support "hot line". Installation of the Software shall only be on devices controlled by the same Windows login for each licensed user. For the sake of clarity, one user may install the Product on both a Personal Computer ("PC') and a laptop as long as both devices are controlled by the same Windows login for that user and the password and user ID for the Product is the same on both devices for that user. The minimum prerequisite hardware/software requirements are stated in the Documentation. 1.3 Training/Implementation Services - If specified in Table A, Global, will provide Customer with training and/or implementation, services as set forth in Table A. The parties will use commercially, reasonable efforts to complete training/implementation services within 90 days of delivery of Software. On -site training class size is limited to 10 individuals. Payment 2.1 Global will invoice Customer for Software license fees and service fees upon execution of this Purchase Agreement. Customer will pay all Invoices within 30 days of the date of invoice. Invoices not paid within 30 days of the due date are subject to an interest charge of the greater of one and one half percent (1.5%) per month or the maximum permitted by law. All prices and payments are in U.S. dollars unless otherwise indicated. 2.2 Reimbursements —Customer agrees to reimburse Global for its reasonable travel expenses (airfare, lodging, meals and ground transportation) actually incurred in connection with providing the services. 2.3 Taxes and Other Charges — Unless Customer provides Global a valid tax exemption certificate, Customer agrees to pay any and all applicable taxes resulting from any transaction hereunder. All amounts referenced in Table A are due to Global and are exclusive of all taxes including federal, state and local use, sales, property, ad valorem, excise and similar taxes, as well as any customs duties paid or payable, however designated related to this transaction, but excluding taxes based on Global's net income. Customer will make payment to Global whenever Global is required to pay or collect such amount from Customer and unless required by law, Customer shall not deduct from payments to Global any amounts paid or payable to third parties for customs duties or taxes, however designated. Annual Improvement, Maintenance and Support ("AIMS") 3.1 During the 90-day Warranty Period Global will provide AIMS at no additional charge. This Section 3.1 is not applicable for subsequent license purchases. 3.2 For the first year, the AIMS fee is 22% of the total list price, or $1,500, whichever is greater. The minimum AIMS fee does not apply for subsequent license purchases. The Annual Improvement Maintenance and Support ("AIMS") service fee for each subsequent year is due annually in advance on each anniversary of the AiMS start date. 3.3 If Customer does not purchase training/implementation services, any training related calls through Global's helpdesk will be billed at Global's then current hourly rate, billed in half hour increments. 3.4 This AIMS service shall be renewed for a period of one year at the end of the initial period of service and each subsequent year of service at the then current AIMS fee, unless the AIMS service is terminated by either party by prior written notice of at least thirty (30) days, The AIMS fee is subject to change at the end of each period of service upon written notice of at least sixty (60) days by Global. Modification to Software License Agreement 4.1 Section 4 Term and Termination of the Software License Agreement shall be modified as follows: Add the following as a new Section 4.1 (iv) of the Software License Agreement: "4.1 (iv) After thirty (30) days from beginning of training, but prior to ninety (90) days from the Effective Date of this Purchase Agreement ("Termination Period"), Customer may terminate the Agreement for dissatisfaction if the Software does not perform satisfactorily ("Dissatisfaction Termination"). Should Customer elect to exercise the Dissatisfaction Termination option during the Termination Period, Customer must provide written notice to Global indicating election of the Dissatisfaction Termination option. Upon Global's receipt of such notice of Dissatisfaction Termination, the Agreement will terminate in accordance with Section 4.2 of the Agreement and Customer will receive a full refund for License Fees paid. Customer must pay for any training/installation fees for services rendered, as outlined in Table A, as well as any travel and living expenses incurred by Global during the provision of services hereunder pursuant to Section 2.2 of this Purchase Agreement. Training/installation fees and travel and living expenses are not subject to refund." 4.2 Delete the last sentence of Section 7.1 Confidentiality and replace with the following: "Notwithstanding the foregoing, the Recipient may disclose Confidential Information to the extent that it is required to be disclosed pursuant to a statutory or regulatory provision or court order? 43 Delete Section 13 Notices of the Software License Agreement. The Section governing Notices is as set forth in the Contract For Services. 4.4 Delete Section 15 Governing Law of the Software License Agreement. The Section relating to Goveming Law is as set forth in the Contract For Services. The parties acknowledge that they have read this Purchase Agreement, understand it and agree to be bound by the terms set forth herein. Additionally, each person signing below on behalf of his or her entity represents that he or she has the authority to bind such entity to these terms. Attachment A, Software License Agreement is attached following signature block Accepted By: Global Software, LLC Signature: Name: Title: Date: Accepted By: Signature: Name: Title: Date: J°-serer r tie c o— /"no! C/I 09/25720/s Attachment A Software License Agreement This Software License Agreement, Purchase Agreement and the City of Tukwila Contract for Services (this "Agreement") constitutes a binding agreement between Global Software, LLC ("Global") and you ("Customer" or "You" or "City") This Agreement provides the terms and conditions upon which Global will grant Customer a license to use its proprietary software and documentation including standard Installation materials, specifications, and online user documents as normally made available by Global in connection with specific Software ("Documentation"), (such proprietary software and Documentation and all updates thereto provided to You by Global, are collectively called the "Software"), and the provision of other related services by Global. 1. Purchase Agreement: The specific Software licenses and services acquired by Customer, and associated commercial terms, including as applicable licensed number of users, software license fees, and AIMS (support) fees, are specified in a separate purchase agreement, printed or online order form, statement of work, or other similar document agreed to by Global (or Global's reselter) and Customer ("Purchase Agreement"). This Agreement governs all Purchase Agreements relating to or entered Into between the parties associated with the Software. As used herein, the term "You" or "Customer" or "City" refers to the entity identified in the Purchase Agreement. In the event of any conflict between the terms of this Software License Agreement and the terms of a Purchase Agreement, the terms of this Agreement shall control unless the Purchase Agreement specifically identifies the Section of this Agreement being varied. In the event of any conflict between the terms of this Software License Agreement and the City of Tukwila Contract for Services ("Contract for Services"), and the Software License Agreement, the Contract for Services shall control unless the Contract for Services speciflcally identifies the Section of the Contract For Services being varied. 2. Effective Date: This Agreement is effective as of the effective date of the Purchase Agreement (the "Effective Date"). 3. Grant of License: Subject to the terms of this Agreement and payment of the fees set forth in the Purchase Agreement, Global grants to Customer a worldwide, non-exclusive, non -transferable, perpetual right (with no right to sublicense) to use the Software provided by Global to You along with this Agreement and a license key for such Software ("License Key"). 4. Term and Termination 4.1 This Agreement may be terminated as set forth below. (I) for cause by either party in the event of any material breach by the other party which breach remains uncured ten (10) days after the provision of written notice thereof; (li) by mutual written agreement of the parties; or tii) After all License Fees and service fees are paid in full, Customer may terminate this Agreement at any time for any reason, at Customer's sole discretion, subject to Customer providing thirty (30) days prior written notice ("Termination for Convenience"). Upon Globars receipt of such notice of Termination for Convenience, this Agreement will terminate in accordance with Section 4.2. Customer understands that fees paid are not subject to refund In the event of a Termination for Convenience. 4.2 Upon termination of this Agreement for any reason, Customer shall discontinue use of the Software, shall either return or destroy the Software, and shall certify in writing that all copies of the Software have been returned or destroyed. Notwithstanding anything to the contrary contained in this Agreement, Sections 5, 6, 7, 8, 10, 11, 12, 13,14, 15 and 16 of this Agreement shall survive any expiration or termination. 5. i1Lt1e 5.1 All rights, title and interest in and to the Software, including all enhancements, updates, modifications and corrections thereto and derivatives thereof and any intellectual property rights therein furnished under this Agreement shall remain with Global or its licensors. As between Global and Customer, Global owns all work product related to this Agreement and any methodologies, techniques, know-how and processes related thereto and any intellectual property rights therein, and such work product shall be licensed to Customer for use solely in accordance with the Software and services pursuant to the terms of this Agreement. The services and Software may be protected by U.S. copyright, trade secret and other laws and international treaty provisions. The Software, services and any work product are agreed to be Global's or its licensors' intellectual property, whether or not any portion thereof is or may be subject to an issued patent or copyright registration. S.2 No modifications or changes made by Customer to the Software or services, however extensive, shall reduce the title and ownership rights of Global or its licensors, to said Software; provided, however, that modifications may void the warranty. 5.3 The Documentation may contain information on certain open source and other third -party software that is included with or Incorporated into the Software ("Third -Party Software"). Certain open source Third -Party Software is licensed directly by You pursuant to the public licenses associated with such software, and is not sublicensed by Global under the terms of this Agreement. The Documentation also lists prerequisite software ("External Software") and hardware that You must acquire for use with the Software. Global Is not responsible for the performance of any External Software or hardware. 6. Use of the Software 6.1 Subject to the terms of this Agreement, Customer may use the Software solely to process information or records of Customer and its Affiliates. For purposes of this Agreement, an "Affiliate" means an entity that directly or Indirectly controls, is controlled by, or is under common control with, a party to this Agreement. For purposes of the foregoing, "control" means the ownership of (i) greater than fifty percent (SO%) of the voting power to elect directors of the company, or (ii) greater than fifty percent (50%) of the ownership interest in the company. 6.2 In no event may Customer use the Software to process information or records of any third party other than an Affiliate, or allow timesharing, rental or use of the Software in a service bureau or as a provider of outsourced services. 6.3 The Software provided herein shall not include source code. Customer shall not decompile, or reverse engineer, or otherwise seek to discover the source code to the Software. 6.4 Customer will not copy the Documentation or Software in whole or in part, except for back-up or archival purposes, without the prior express written consent of Global. 6.5 The Software and Documentation shall at all times contain all proprietary and copyright notices originally appearing thereon and Customer shall not take any action which would adversely affect proprietary rights or copyrights therein. 6.6 Customer shall not authorize or permit unauthorized access to the Software. 6.7 Customer shall not distribute, market, sell, lease, or sublicense the Software, and shall not use the Software in a manner not authorized by this Agreement. Customer shall not use the Software In a manner that violates any applicable law, including in violation of the intellectual property or other rights of any third party, including privacy rights. 6.8 Customer's right to use the Software Is limited to the number of individual users specified in the Purchase Agreement associated with this Agreement. Customer shall ensure that each user shall access the Software with a user ID and password that is unique to that user. 6.9 The Software may Include a t.icense Key and other technology designed to prevent unauthorized use and copying, including without limitation to enforce limitations on number of users. This technology may prevent use of the Software that is not permitted. You agree not to circumvent or attempt to circumvent any such anti -copying mechanisms. 6.10 Global reserves all rights not specifically granted herein. 7. Confidentiality 7.1 "Confidential Information" means all information and materials obtained by a party (the "Redpient") from the other party (the "Disclosing Party"), whether in tangible form, written or oral, that Is identified as confidential or would reasonably be understood to be confidential given the nature of the information and circumstances of disclosure. Confidential information includes, without limitation, all information relating to the Disclosing Party's business plans, marketing plans, customers, technology, employee and organizational information, product designs, product plans and financial information. Confidential Information of Global also includes the results of any tests or analyses run by You on the Software. Confidential information does not include information that (I) is already known to the Reciplent prior to its disclosure by the Disclosing Party; (II) is or becomes generally known through no wrongful act of the Recipient; (ill) Is independently developed by the Recipient without use of or reference to the Disclosing Party's Confidential Information; or (iv) is received from a third party without restriction and without a breach of an obligation of confidentiality. Subject to the preceding sentence, Confidential Information includes the services and Software and all Customer data and the pricing and terms set forth herein, as welt as any Purchase Agreement. Either party may disclose Confidential information on a need to know basis to its Affiliates, contractors and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those In this Section 7.1. The Recipient shall not use or disclose any Confidential Information without the Disclosing Party's prior written permission except as necessary for the provision of the services or use of the Software, or as otherwise allowed herein . The Recipient shall protect the confidentiality of the Disclosing Party's Confidential information in the same manner that it protects the confidentiality of its own confidential information of a similar nature, but using not less than a reasonable degree of care. Notwithstanding the foregoing, the Reciplent may disclose Confidential information to the extent that it is required to be disclosed pursuant to a statutory or regulatory provision or court order. 7.2 Global shall have the right to view Customer usage statistics and may compile aggregate statistical analysis data and reports for internal use only. Any reporting that contains aggregated data shall preserve Customer's anonymity and the confidentiality of Customer's usage data. 7.3 Each party acknowledges and agrees that violation of this Section 7 may cause irreparable harm to the Disclosing Party, and the Recipient agrees that the Disclosing Party may seek injunctive relief if the Reciplent breaches or threatens to breach this Section 7, without needing to post any bond, and without limitation of any other rights and remedies available to it. 8. limited Warranty 8.1 Each party warrants and represents that It has all requisite legal authority to enter into this Agreement 8.2 Global warrants that the Software will substantially conform in all material respects to its Documentation for a period of ninety (90) days immediately following the Effective Date ("Warranty Period"). At no additional cost, and as Customer's sole and exclusive remedy for failure to meet the limited warranty set forth to this Section 8, and as Global's sole obligation and liability under this Section 8, Global will use commercially reasonable efforts to correct the specified nonconformity to the applicable Documentation, or at Global's sole discretion and option, refund the applicable Software license Fee paid by Customer upon return of the applicable Software materials, which will serve to terminate this Agreement. The foregoing warranty obligation applies only if Customer promptly notifies Global in writing of said nonconformity, and such notke outlines the specific details of the nonconformity. 8.3 The limited warranty set forth in this Section 8 shall be void If the failure of the Software to conform is caused by (I) the use of the Software other than the most current version, (ii) the use or operation of the Software with an application or in an environment other than as set forth in the Documentation, or (111) modifications to the Software that were not made by Global or Global's authorized representatives. 8.4 Except as expressly set forth herein, neither party makes any representations or warranties of any kind, whether express or implied, including any warranties of merchantability, fitness for a particular purpose, or non -infringement. Global does not represent or warrant that Customer's use of the Software will be error free. Global's express warranties shall not be enlarged, diminished, or affected by and no obligation or liability shall arise out of Global's rendering of technical or other advice or service in connection with the Software. 9. Maintenance: Subject to payment of applicable fees, Annual Improvement, Maintenance and Support ("AIMS") service Is provided for the current release and one release back for the designated standard Software and Includes the following: (I) error analysis when the Software is not performing in conformance with the Documentation; (II) fixes as applicable to ensure conformance with the Documentation; (ill) Documentation updates as necessary; and (iv) new releases as Global deems appropriate. New releases contain only standard code. Should Customer's Software contain non-standard code, whether created by Customer or delivered by Global, Customer is responsible for Integrating non-standard code into the new release. The cost of solving any problem attributable to non-standard code or attributable to interface software supplied by other vendors will be charged to Customer on a time and materials basis at Global's then -current standard rates. Support services Include Customer access to Global Customer Support. Global Customer Support includes reasonable consultation and assistance on proper use of the Software that can be accomplished by telephone or e-mail. 10. indemnification 10.1 Global's Indemnification Obligation. Subject to the terms and conditions set forth in this Section 10.1, Global shall, at its own expense, defend Customer and its Affiliates, subsidiaries, officers, directors, shareholders, and employees, ("Customer Indemnitees") from and against any and all allegations, threats, claims, suits, and proceedings brought by unaffiliated third parties (collectively "Claims") arising from an allegation that the Software as used in accordance with the Documentation and this Agreement, infringes such third party's copyrights or trademarks, or misappropriates such third party's trade secrets; and shall Indemnify Customer Indemnitees from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees) (collectively, "Losses") to the extent based upon such a Claim. The foregoing indemnification obligations apply only if each of the following conditions are met: Customer (i) gives Global prompt written notice of such Claim, (10 grants Global sole control of the defense or settlement of such Claim and (Ili) reasonably cooperates with Global, at Global's expense, in its defense or settlement of the Claim. Global may, at Its option and expense, (Iv) replace the Software with compatible non -infringing software, (v) modify the Software so that It is non -infringing, (vi) procure the right for Customer to continue using the Software, or (vii) if the foregoing options are not reasonably available, terminate the license to use the Software and refund Customer all license fees paid by Customer that is applicable to the Software being terminated, pro -rated over a five (5) year useful life. Global shall have no obligation to Customer with respect to any Claim If such Claim is based upon (viii) Customer's use of a version of the Software that is not the most current version, if Customer's liability would have been avoided with the use of the most current version, (Ix) Customer's use of the Software and/or service in a manner not expressly authorized by this Agreement, (x) the combination, operation, or use of the Software and/or services with third party product that was not listed In the Documentation, if Customer's liability would have been avoided in the absence of such combination, use, or operation, or (xi) modifications to the Software other than as authorized in writing by Global. THIS SECTION 10.1 SETS FORTH GLOBAL'S ENTIRE OBLIGATION TO CUSTOMER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT. 10.2 Customer's Indemnification Obligation. Subject to the terms and conditions set forth in this Section 10.2, and to the extent allowable by applicable taw, Customer shall, at Its own expense, defend Global and its Affiliates, subsidiaries, officers, directors, shareholders, and employees, ("Global Indemnitees") from and against any and all Claims arising from an allegation that Customer's unauthorized use of the Software or any Customer data infringes such third party's copyrights or trademarks, or misappropriates such third party's trade secrets; and shall indemnify Global Indemnitees from and against Losses to the extent based upon such a Claim. The foregoing indemnification obligations apply only if each of the following conditions are met: Global (i) gives Customer prompt written notice of such Claim, (ii) grants Customer sole control of the defense or settlement of such Claim, and (Ili) reasonably cooperates with Customer, at Customer's expense, in its defense or settlement of the Claim. 11. Limitation of Liabilities: EXCEPT FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS AND FOR BREACHES OF CONFIDENTlAUTY SET FORTH ABOVE, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE UABIUTY ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF LICENSE AND/OR AIMS FEES PAID BY CUSTOMER TO GLOBAL FOR THE RELEVANT SOFTWARE WITHIN THE PRECEDING TWELVE (12) MONTHS, IN NO EVENT SHALL EITHER PARTY BE UABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR ANY LOST PROFITS OR LOST REVENUE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBIUTY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. 12. Assignment: Customer's rights in and to the Software provided under this Agreement may not be assigned, licensed, pledged, or otherwise transferred voluntarily, by operation of law or otherwise without Global's prior written consent, and any such prohibited assignment shall be null and void. Notwithstanding the foregoing, either party may assign this Agreement to any Affiliate, or to a person or entity into which it has merged or which has otherwise succeeded to all or substantially all of its business and/or assets to which this Agreement pertains, by purchase of stock, assets, merger, reorganization or otherwise, and which has, by providing prompt written notice to Global, assumed in writing or by operation of law, its obligations under this Agreement, provided that Customer may not assign this Agreement to a direct competitor of Global. In the event of assignment, this Agreement shall be binding upon and shall inure to the benefit of the parties' respective successors and assigns. Any assignment or attempted assignment in breach of this Section shall be void. 13. Notices: Ali notices which either party Is required or may desire to give the other party hereunder shall be given by certified or registered mail, return receipt requested, or nationally recognized overnight courier service. Such notice shall be deemed given on the date of the receipt (or refusal) of delivery. All notices to Customer shall be sent to the address provided at the time of licensing, unless and until written notice is given of any other address. All notices to Global shall be sent to Global Software, 3301 Benson Drive, Suite 201, Raleigh, NC, 27609; Attention: Legal, unless and until written notice is given of any other address. 14. Export Compliance: Customer shall not: (i) permit any third party to access or use the Software in violation of any law or regulation; or (i1) export the Software or otherwise remove It from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Software in, or export it to, a country subject to a United States embargo. 15. Governina Law 15.1 North America. if the address You provided In the Purchase Agreement is in North America, the interpretation, construction, and validity of this Agreement shall be governed by the laws of the State of Delaware without regard to the conflicts of laws principles. 15.2 Australia. If the address You provided in the Purchase Agreement is in Australia, the interpretation, construction, and validity of this Agreement shall be governed by the laws of the State of Western Australia. 15.3 Any Other Country. If the address You provided in the Purchase Agreement is In any country not named in Section 15.1 or 15.2 above, the Interpretation, construction, and validity of this Agreement shall be governed by the laws of England and Wales. 15.4 In no event shall this Agreement be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. 16. General 16.1 Titles and Paragraph headings are for convenient reference and are not a part of this Agreement. This Agreement, including the Purchase Agreement and all documents incorporated herein by reference, constitutes the entire agreement between the parties relating to the Software and services, supersedes in full all prior discussions, correspondence and agreements between the parties relating to the Software and services and may be modified or supplemented only by a document agreed to by an authorized representative of each party. The foregoing notwithstanding, the preprinted terms and conditions of any purchase order or other ordering document issued by Customer In connection with this Agreement shall be deemed to be for Customer's convenience only and shall in no way modify, add to or delete from the terms and conditions of this Agreement or any Purchase Agreement. 16.2 Global Software shall not be liable for delays In any of its performance hereunder due to causes beyond its reasonable control, including but not limited to, acts of God, strikes, acts of war, terrorism, or inability to obtain labor or materials on time. 16.3 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 and signed by an authorized representative. in the event that any provision of this Agreement shall be illegal or otherwise unenforceable, such provision shall be severed and the entire Agreement shalt not fail on account thereof and the balance of the Agreement shall continue in full force and effect. 16.4 The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf. 16.5 In the event that any action or proceeding is brought In connection with this Agreement, the prevailing party therein shall be entitled to recover its cost and reasonable attorney's fees. 16.6 If the Purchase Agreement is entered into by art Affiliate of Global rather than Global, then this Agreement shall be between such Global Affiliate and You, rather than Global and You. In such case, You agree that any claim that You may have under this Agreement will be only against the Global Affiliate that entered into the Purchase Agreement with You, and You will make no claim under this Agreement against Global or any other Global Affiliate.