20240815CAP to Staff Supplemental 49 - Capitol Water Contract Final Muni Link.pdf

* MUNI-LINK SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT, effective as of the date the last party executes this Agreement as set forth next to
their signature below, is made between LINK COMPUTER CORPORATION, 140 Stadium Drive, PO Box
250, Bellwood, PA, 16617 (hereinafter"Link"), and Capitol Water Corporation, 2626 N Eldorado Street,
Boise, ID 83704 (hereinafter"Customer").
1. LICENSE GRANT
Link hereby grants to Customer a non-exclusive, non-transferable, non-sublicenseable right to use the
Services identified in Schedule A attached hereto or additional Schedules to be attached hereto in the
future (Schedule A and/or future Schedules referred to hereinafter as "the Schedules") (hereinafter
"Services") solely for Customer's own internal business purposes. All rights not expressly granted to
Customer are reserved by and to Link. No ownership in the Services is transferred hereunder. Customer
grants to Link an irrevocable license to use or incorporate into the Services any suggestions, ideas,
enhancement requests, feedback, recommendations or other information provided by Customer or
Customer's users.
2. LINK SERVICE SUPPORT TO CUSTOMER
Link maintains a full-time, dedicated, and professional support staff to provide assistance to Customers.
The support staff will answer process and "how-to" questions, resolve user problems, configure software
changes requested by Customer, and review and explain new features when they are released. This
support is available by telephone and email. Additionally, Link provides video tutorials, "Help Cards",
periodic webinars and other support resources. This support is included as part of the standard monthly
fee referenced on the Schedules attached hereto with respect to those particular services.
3. LINK RESPONSIBILITIES
3.1 Link shall use commercially reasonable efforts to make the Services generally available 99.5% of
each calendar month, except for: (a) planned downtime, with at least 48 hours of advance notice to the
Customer, which will be scheduled during hours other than Monday through Friday, 8:00 AM to 5:00 PM,
whenever reasonably possible; and (b) downtime caused by circumstances beyond Link's reasonable
control, including but not limited to, acts of nature, acts of government, flood, fire, civil unrest, threat of
terrorism, strike or other labor problem not involving Link's employees, telecommunications or computer
failures or delays, and unauthorized and/or illegal network intrusions or cyber-attacks that result in
damage to the Services or operate to prevent use of the Services by Link and/or the Customer.
3.2 Link shall use commercially reasonable efforts to maintain the confidentiality of Customer Data, the
security and integrity of the Services, and to promptly respond to and attempt to fix problems that interfere
with the smooth and effective operation of the Services and/or Customer's use thereof.
3.3 Link shall use commercially reasonable efforts to monitor its Services and take commercially
reasonable actions to make Link's Services secure from unauthorized access, network intrusions, cyber-
attack, or subject to viruses or malware.
4. CUSTOMER RESPONSIBILITIES
4.1 Customer may use the Services only for Customer's internal business purposes. Customer and its
authorized users shall not: (a)send or store material with any virus, worm, or other harmful computer
code; (b) interfere with or disrupt the integrity or performance of the Services in whole or in part; or(c)
attempt to gain unauthorized access to the Services or any related system or network. Customer shall
take reasonable measures to protect Customer's information technology system from unauthorized
access and to prevent anyone from engaging in the foregoing prohibited actions. If Customer or its
authorized users engage in the foregoing prohibited actions or if Customer fails to take reasonable steps
to protect Customer's information technology system from unauthorized access that results in an
unauthorized user engaging in the foregoing prohibited actions, Link may immediately suspend Customer
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from accessing the Services until Customer corrects the violation, or Link may also terminate Customer's
license and this Agreement for such breach.
4.2 Customer shall not: (a) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise
commercially exploit or make available to any third party any Services or the Content in any way; (b)
modify, copy, or make derivative works based upon the Services or the Content; (c) create Internet"links"
to or from the Services or"frame" or"mirror" any Content, other than on Customer's own intranets or
otherwise for Customer's own internal business purposes; or(d)disassemble, reverse engineer, or
decompile the Services in order to: (i) build a competitive product or service, (ii) build a product using
similar ideas, features, functions, designs or graphics of the Services, or(iii) copy any idea, feature,
function, design, or graphic of the Services. The Services licensed hereunder cannot be shared with
anyone else or used by anyone other than Customer and its authorized users. "Content" means visual
information, documents, software, products and services contained or made available to Customer as
part of the Services.
4.3 Customer shall: (a) use reasonable efforts to prevent unauthorized access to or use of the Services
or any Content in whole or in part; (b) notify Link promptly of any actual or suspected unauthorized
access/use; (c) abide by all applicable local, state, and national laws and regulations, including those
related to data privacy, communications, and the transmission of technical or personal data; (d) be
responsible to ensure the accuracy, quality, integrity, legality, reliability, and appropriateness of all
Customer Data; and (e) comply with Link's policies to obtain support and other services under this
Agreement.
5. CUSTOMER DATA
5.1 All Customer Data (any data or information Customer provides or submits within the parameters of
the Services including the initial conversion of data during implementation and set up) shall be and
always remain Customer's and shall be considered Customer's Confidential Information. Link will retain
Customer Data up to ten (10) years. Customer shall grant Link access to the Customer Data so that Link
can respond to, assess, or resolve service or technical problems; in doing so, Link will maintain the
confidentiality of the Customer Data.
5.2 Upon termination of this Agreement, Customer Data shall be provided to Customer in a standardized
electronic format capable of being converted and/or uploaded into most databases upon payment of all
outstanding invoices to Link. Link shall have no obligation to retain a copy of Customer Data longer than
30 days after delivery to Customer of the Customer Data.
5.3 Link can provide Customer Data in a standardized electronic format capable of being converted
and/or uploaded into most databases to Customer during the term of this Agreement upon request of the
Customer. Customer will be responsible to pay Link's standard processing fee in effect at the time of the
request.
6. CHANGES TO SERVICES
Link reserves the right to: (a) upgrade, modify, replace, or reconfigure the Services at any time, and (b)
change the terms of this Agreement, including Link's fee schedule, support and service terms and
standards. Link will give Customer at least 30 days' advance notice of any change that significantly
affects the use or cost of any Service by either an email to Customer's representative or by a posting on
the Service to which the change applies. For 30 days after the foregoing notice, Customer shall have the
right to terminate the Service; in which case, at Customer's request, Link will continue to provide the
Service for up to 90 days so long as the monthly fee is paid current during this transition period.
Otherwise, the change will be deemed effective 30 days after the notice if Customer uses the Service to
which the change applies thereafter.
7. FEES AND PAYMENT
7.1 Link will invoice Customer in accordance with the terms specified in the Schedules attached hereto.
Customer shall pay all amounts due when they are due.
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7.2 Past due invoices will be subject to a late charge equal to 1.5% of the outstanding balance per month
from the due date until paid. Customer shall also be responsible for any applicable expenses incurred
with collection efforts, including but not limited to pre-litigation collection efforts, by an attorney or
collection agency and court costs and attorneys' fees.
7.3 If Customer's account has a past due balance, Link reserves the right to suspend the Services until
such amounts are paid in full, including all accrued liabilities and obligations. Customer will continue to
be charged during any period of suspension. Link reserves the right to impose a reconnection fee if
Customer access to the Service is suspended for non-payment, and Customer thereafter requests access
to the Services.
8. TERM AND TERMINATION
8.1 The term of this Agreement shall be effective from the date the last party executes this Agreement as
set forth next to their signature below. Upon signing this Agreement, the Customer is obligated to pay the
fees as specified in the attached Schedule A, including the Implementation, Training and Data
Conversion Fee in full, and Muni-Link Software Fees for one year from the initial billing date, which will
end the initial term. This Agreement shall renew automatically for additional one-year terms unless either
party provides written notice of the party's intent to not renew the Agreement to the other party at least 90
days prior to the expiration of the then existing one year term. Upon termination and payment to Link of
all outstanding invoices including the monthly fees for the remaining months of the one-year term, Link
shall provide Customer with the Customer Data in a standardized electronic format as provided for in
Section 5.2.
8.2 If Customer breaches this Agreement for any reason including nonpayment of invoices for Services,
except for breach of Customer's duties in Section 4.1 in which Link may terminate the Agreement
immediately, Link may terminate this Agreement after 30 days' written notice to Customer, and Customer
fails to cure the breach during such 30-day period. If Link terminates the Agreement, Customer shall
remain responsible to pay any balance remaining due and upon payment of the same, Link shall provide
Customer Data in a standardized electronic format as provided for in Section 5.2.
8.3 Upon termination of this Agreement and prior to the release of the Customer Data to Customer,
Customer shall submit to Link a written and signed letter affirming that Customer has (a) not given, sold,
rented, or lent any copy or any part of the Confidential Information (defined in Section 9) in any shape or
form to any third party, including any user login credentials; and (b) releasing Link from any and all claims
related to this Agreement and the Services unless Customer identifies in writing that Link has breached
the Agreement.
9. PROPRIETARY RIGHTS AND CONFIDENTIALITY
9.1 Link owns all right, title and interest in and to the Services and the Content, including but not limited
to copyrights, patents, trade secrets, trademarks, and intellectual property not subject to copyright or
patent but are proprietary and valuable to Link (collectively, "Proprietary Rights"). The "MUNI-LINK" name
and logo are registered trademarks of Link, and the product names associated with the Services are
trademarks of Link. Customer shall have no right or license to use the trademarks without Link's written
permission. Customer shall not challenge any ownership or other right of Link with respect to the
trademarks or Proprietary Rights while a customer or after termination of this Agreement.
9.2 Proprietary Rights shall constitute "Confidential Information" under this Agreement. Without Link's
prior written consent, Customer shall not use any Confidential Information except on a "need to know"
basis to use the Services, nor shall Customer disclose any Confidential Information except as required by
the laws of the state in which the Customer is located with respect to the public's "right-to-know" or
"freedom of information" (hereinafter"RTK/FOIA laws"). Customer shall give Link 5 days' notice before
releasing Confidential Information under RTK/FOIA laws in order to allow Link to assert any rights it may
have to keep the Confidential Information confidential and not subject to disclosure. In the unlikely event
that Customer is subpoenaed to produce Confidential Information, Customer shall immediately notify Link
so Link can assert any and all rights to prevent the disclosure or limit the disclosure of Confidential
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Information. Customer shall utilize all reasonable security measures to protect the confidentiality of the
Confidential Information. Customer acknowledges the importance of the Confidential Information and
that, because other remedies are inadequate, if Customer discloses or uses (or threatens to disclose or
use) any Confidential Information in breach of this Section 9.2, Link shall have the right to seek injunctive
relief, and Customer waives any obligation that a bond be posted by Link in connection with such relief. If
requested by Link, Customer shall return all of the Confidential Information or provide proof of destruction
of the same.
9.3 This Section 9 shall survive the termination of this Agreement.
10. REPRESENTATIONS; WARRANTIES; AND LIMITATIONS
10.1 Customer represents and warrants that the undersigned has the legal authority to enter into this
Agreement, and all necessary legal action, including adoption at a public meeting, if required by
Customer's state's laws, has occurred. Upon execution by the undersigned, this Agreement shall be a
legally binding contract between Customer and Link.
10.2 The Services may be subject to limitations, delays, and other problems inherent in the use of the
Internet and electronic communications beyond both Customer's and/or Link's control. Link is not
responsible for any delays, delivery failures, or other damage resulting from the foregoing.
10.3 Link warrants and represents that the Services will conform to Link's specifications that are in effect
for the Services at that time, that the Services will perform substantially in accordance with what was
presented and demonstrated to Customer, and that Services will operate in a manner consistent with
general industry standards, which means the Services will be reasonably free from program coding
errors. Link does not warrant that the Services will be free from all errors or that all possible program
defects can be corrected. Customer shall give notice to Link immediately of any perceived error, and Link
shall make every attempt to resolve any error in the Services at no cost to Customer to the extent the
error is related to Link's Services and not a third party. Link will provide updates to the Services as are
commercially reasonable in light of changes in third party software such as computer operating systems
and internet web browsers or advise Customer of any third party product or upgrade of a product that Link
becomes aware cannot operate in conjunction with Link's Services. Link is not responsible for changes in
Customer's intellectual technology system, including hardware or software, in the absence of Customer's
prior consultation with Link, that causes the Services not to operate or operate as the Services previously
operated. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY
AND/OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY DISCLAIMED TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10.4 Neither party shall be liable to the other for special, incidental, punitive, exemplary, or consequential
damages (including loss of data, revenue, profits, use, or other economic advantage)arising from the
Services and/or this Agreement even if one party has advised the other party of the possibility of such
damages and regardless of the basis of any claim, i.e., contract, warranty, tort, or strict liability. In no
event shall Link's aggregate liability to Customer exceed the amounts actually paid by the Customer in
the 12-month period immediately preceding the event giving rise to Customer's first claim, regardless of
the number of claims arising out of or related to this Agreement. Both parties acknowledge this Section
10.4 is reasonable in light of the cost of the Services and the length of the term of the Agreement.
10.5 Customer shall indemnify, defend, save and hold harmless Link, its affiliates, officers, directors, and
employees from and against any and all claims brought against Link by a third party(person or entity not
a party to this Agreement) relative to Customer's use of the Services hereunder and the Customer Data.
Link shall provide written notice of a potential or actual claim to Customer within 7 business days of
becoming aware of such potential or actual claim.
11. GENERAL
11.1 Customer may not assign any rights or obligations hereunder, whether by operation of law or
otherwise, without Link's prior express written consent, which consent shall not be unreasonably withheld.
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The Agreement shall bind and inure to the benefit of the parties, their respective successors and
permitted assigns.
11.2 No joint venture, partnership, employment, or agency relationship exists between Link and
Customer. Customer agrees that Link can reference Customer's name and/or logo for the sole purpose
of simply acknowledging Customer as one of Link's customers until Customer gives notice of its intent to
terminate this Agreement or this Agreement otherwise terminates as provided for herein.
11.3 Link may notify Customer by means of a general notice on the Services, by email, or by written
mailed communication, as per Customer's contact information in the Schedules attached hereto with
respect to the Services in such Schedules. Notice shall be deemed to have been given within three (3)
business days after mailing or 12 hours after sending an email or posting a change on the Services.
Customer may notify Link (and such notice shall be deemed given when received) at any time by email,
fax, or written mailed communication as per Link's contact information in the Schedules attached hereto.
11.4 The failure of either party to insist on strict performance by the other party to any provision of this
Agreement shall not be construed as a waiver, release, or relinquishment thereof. Any waiver must be in
writing signed by the waiving party in order to be effective, and such waiver shall only be effective to the
breach being waived at that point in time and not to future breaches unless later waived in writing as
provided for herein. No failure or delay by either party in exercising any right shall constitute a waiver of
that right. Except as expressly provided herein, all of the parties' rights and remedies shall be cumulative,
and none of them shall be in limitation of any other right or remedy in law or equity.
11.5 If any provision of this Agreement is held invalid or unenforceable to any extent, the remainder of
the provision or this Agreement shall not be affected thereby and that provision or this Agreement shall be
enforced to the greatest extent permitted by law.
11.6 THE PARTIES EXPRESSLY WAIVE THEIR RIGHTS TO A TRIAL BY JURY, AND AGREE AND
CONSENT TO A TRIAL BY COURT. The parties irrevocably agree that jurisdiction and venue with
respect to any action arising from this Agreement shall be solely in the Court of Common Pleas of Blair
County, Pennsylvania, and each party waives all objections to personal jurisdiction and venue. The
parties agree that the provisions of this Agreement shall be interpreted in accordance with the laws of the
Commonwealth of Pennsylvania without regard to its choice of law provisions.
11.7 This Agreement contains the entire understanding of the parties relating to the subject matter
hereof. No amendment or modification of this Agreement shall be valid or binding upon the parties unless
it is in writing and signed by the duly authorized officers of the parties. No other agreements or
understandings, either written or oral, shall apply. This Agreement shall control over any purchase order
with any contrary or additional terms issued by the Customer.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed by a duly
authorized representative.
LINK COMPUTER CORPORATION
By: Date:
Tim Link, President
XXXX
By: Date:
Print Name:
Title:
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