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HomeMy WebLinkAboutC20-422 Ninth BrainNinth Brain Suite, LLCOrder Date: 7/29/2020Eagle County Airport FireAvailable Investment ProgramsPrograms# ofAccountsService Payment PlanMonthlyInvestmentYearly InvestmentCustom Package8 1 year Upfront yearly payment$40.00$480.00Special TermsEagle County Airport Fire to pay for NBS program starting September 1, 2020. Service will continue until termination. A 60 day cancellation notice in writing is required to terminate service.All Subscriptions IncludeInitial and ongoing online training for administrators, scheduled at your convenienceAutomatic free upgrade when a new version of our software is releasedEmail and toll-free client support during normal business hours (8-5 PM EST)Payment TermsAgreement stands until termination. The fee structure may be changed by Ninth Brain no more than once per year upon 30 days prior notice to client. Payment begins upon order form signed. The invoice is due upon receipt of invoice and payment is expected to bereceived in the Ninth Brain office within 30 days of receipt of said invoice. Any balance remaining unpaid shall accrue interest at the lesser of 18% per annum or the maximum amount provided by law.Cancellation TermsIn regards to monthly payment plan contracts, either party may terminate this agreement at any time, with or without cause, upon 60 days prior written notice to the other party. In regards to yearly payment plans, client can terminate agreement upon 60 days noticehowever the upfront yearly payment is non-refundable. If Ninth Brain terminates the agreement upon 60 days notice, Ninth Brain is responsible for a refund of the months not in service.User Audit TermsNinth Brain has the right to audit number of users throughout the contract at any time. If the user base is over 10% of the original user base, Ninth Brain has the right to charge accordingly for the increase usage. Ninth Brain will alert the client of this change in rate upon30 days prior of due date.TermsThis order is governed by the terms of the Terms of Service between the parties, which terms are incorporated into this order for all purposes. If there is a conflict between the terms of this order and the agreement, this order governs. This order and the agreement arethe entire agreement between the parties, and they supersede and replace all prior and contemporaneous negotiations, agreements, representations and discussions regarding this subject matter. Only a signed writing of the parties may amend this order.Name:Name:Holly TaylorSignature:Signature:Title:Title:Chief Hat HolderDate:Date:9/3/2020Ninth Brain Suite - 888-364-9995 - sales@ninthbrain.com - www.ninthbrain.comDocuSign Envelope ID: 978402FF-3574-4A28-95F6-420F622D22C2Jeff ShrollCounty Manager11/30/2020C20-422 Terms Confidential – Ninth Brain Suite; Rev. 6/7/2019 1 Terms of Service This agreement is between Ninth Brain Suite, LLC, a Michigan corporation (Ninth Brain), and the customer agreeing to these terms (Customer). It is dated as of the date Ninth Brain signs below. 1. SOFTWARE AS A SERVICE. This agreement provides Customer access to and usage of an Internet based management software service as specified on an order and as further outlined at: www.ninthbrain.com (Service). 2. USE OF SERVICE. a. Customer Owned Data. All information, files and content uploaded by Customer remains the property of Customer, as between Ninth Brain and Customer (Customer Content). Customer grants Ninth Brain the right to use the Customer Content solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Content as allowed by functionality within the Service. More information is located at www.ninthbrain.com/faqs b. Contractor Access and Usage. Customer may allow its contractors to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors. c. Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Content and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Ninth Brain promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s online help manual and applicable law. Additional information regarding the roles of the parties is located at this FAQ, which may be changed over time: www.ninthbrain.com/faqs Customer is responsible for checking and reviewing this FAQ. Ninth Brain will make reasonable commercial efforts to notify Customer of any significant changes to this FAQ through email. Customer is responsible for keeping its updated email address within the Service. d. Ninth Brain Support. Ninth Brain shall provide customer support for the Service under the terms of Ninth Brain’s Customer Support Policy (Support) which is located at www.ninthbrain.com/support, and is incorporated into this agreement for all purposes. 3. SERVICE LEVEL AGREEMENT & WARRANTY. a. Warranty. Ninth Brain warrants to Customer: (i) the functionality or features of the Service may change but will not materially decrease during any paid term; and (ii) that the Support may change but will not materially degrade during any paid term. b. Customer Warranty. Customer represents and warrants to Ninth Brain that all information and content it uploads or submits to the Service is true, accurate and correct. c. DISCLAIMER. NINTH BRAIN DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE NINTH BRAIN TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, NINTH BRAIN DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED. NINTH BRAIN DISCLAIMS ANY TYPE OF WARRANTY REGARDING THE ACCURACY OF ANY INFORMATION OR DATA PROVIDED WITHIN SERVICE. 4. PAYMENT. Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. Cu stomer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement. The fee structure may be changed by Ninth Brain no more than once per year upon 30 days prior written notice to customer. Ninth Brain has the right to audit number of users throughout the contract at any time. If the user base is over 10% of the original user base, Ninth Brain has the right to charge accordingly for the increase usage. Ni nth Brain will alert the client of this change in cost upon 30 days prior to due date. Invoices are due upon receipt of invoice and payment is expected to be received by Ninth Brain within a 30 day window. Any balance remaining unpaid shall accrue interest at the lesser of 18% per annum or the maximum amount provided by law. 5. MUTUAL CONFIDENTIALITY. a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Ninth Brain’s Confidential Information includes without limitation the Service (including without limitation the Service user interface design and layout, and pricing information). b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidentia l Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agr eement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement. DocuSign Envelope ID: 978402FF-3574-4A28-95F6-420F622D22C2 Confidential – Ninth Brain Suite; Rev. 6/7/2019 2 c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was indepe ndently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order. 6. NINTH BRAIN PROPERTY. a. Reservation of Rights. The software, workflow processes, user interface, designs, know-how, and other technologies provided by Ninth Brain as part of the Service are the proprietary property of Ninth Brain and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Ninth Brain. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. Ninth Brain reserves all rights unless expressly granted in this agreement. b. Restrictions. Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service ; or (vi) access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes. c. Aggregate Data. During and after the term of this agreement, Ninth Brain may use non-personally identifiable data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support and other business purposes. 7. TERM AND TERMINATION. a. Term. This agreement continues until all orders have terminated. b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured. c. Termination Without Cause. Either party may terminate this agreement upon sixty (60) days’ notice, without cause. If a client is o n an upfront year payment plan, client can terminate agreement with notice 60 days prior ; however the upfront yearly payment is non- refundable. d. Return of Customer Content. • Before termination is complete, upon request Ninth Brain will make the Service available for Customer to export Customer Content as provided in Section 2(a). • After termination, Ninth Brain has no obligation to maintain the Customer Content and may destroy it. e. Return Ninth Brain Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay Ninth Brain for any unpaid amounts, and destroy or return all property of Ninth Brain. Upon Ninth Brain’s request, Customer will confirm in writing its compliance with this destruction or return requirement. f. Suspensions. Ninth Brain may temporarily suspend the Service or remove the applicable Customer Content, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law, or if Customer has unpaid invoices. Ninth Brain will attempt to contact Customer in advance. 8. LIABILITY LIMIT. a. EXCLUSION OF INDIRECT DAMAGES. Ninth Brain is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of data, records or information; and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss. b. TOTAL LIMIT ON LIABILITY. Ninth Brain’s total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer within the 12 month period prior to the event that gave rise to the liability. 9. GOVERNING LAW AND FORUM. This agreement is governed by the laws of the State of Michigan (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Genesee County, Michigan, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing part y in any litigation is entitled to recover its attorneys’ fees and costs from the other party. DocuSign Envelope ID: 978402FF-3574-4A28-95F6-420F622D22C2 Confidential – Ninth Brain Suite; Rev. 6/7/2019 3 10. OTHER TERMS. a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing. b. Successors and Assigns. This agreement shall be binding upon and inure to the benefit of the parties and their respective successors and lawful assigns. c. Independent Contractors. The parties are independent contractors with respect to each other. d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events. e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach. f. No Additional Terms. Ninth Brain rejects additional or conflicting terms of any Customer form-purchasing document. g. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails. h. Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply. i. Feedback. By submitting ideas, suggestions or feedback to Ninth Brain regarding the Service, (i) Customer agrees that such items submitted do not contain confidential or proprietary information; and (ii) Customer hereby grants Ninth Brain an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose. ________________________________________________________ (Client) Ninth Brain Suite, LLC. Signature: Signature: Printed Name: Printed Name: Holly Taylor Title: Title: Chief Hat Holder/Client Services Date: Date: Address: Address: 481 N. Main St. Ste 148, Frankenmuth, MI 48734 DocuSign Envelope ID: 604BEAB9-781F-497A-A823-534ED524EFCB Jeff Shroll County Manager Eagle County 12/15/2020 PO Box 850, Eagle, CO 81631 12/15/2020