Reso 2006-910 - Laserfiche WebLink

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Page 2 of 3 b) Default by the Seller (i) If the Buyer elects to terminate this Agreement, all finished and unfinished documents, data and other work product prepared by Seller and/or Seller's agent(s) shall be delivered to the Buyer and the Buyer shall compensate the Seller for all services satisfactorily performed prior to the date oftennination, (ii) Notwithstanding the foregoing, the Seller shall not be relicved of liability to the Buyer for damages by virtue of Seller's breach of the agreement and the Buyer may reasonably withhold payments to Seller for purposes of set-off until such time as the exact amount of damagcs due the Buycr from the Seller is determined. e) Default by the Buycr I) Should default by the Buyer occur before delivery of the Equipment to Buyer's premises the Buyer recognizes that Seller in connection with the performance of this Agreement will have incurred costs and expenses to Scller's damage. Therefore, Buyer agrees that Seller may retain Buyer's deposit of the amount of the Contract price to Seller as liquidated damages upon a default occurring before delivery of the Equipment. 2) Should default occur after delivery of this Equipment: (i) Seller may disable the Equipment and may tender writtcn request to Buyer to for the return ofthc Equipment. (ii) If Buyer fails to surrender possession of the Equipment to Seller after Seller tenders a written request to Buyer, Seller shall have the right to entcr Buyer's premises and may without brcach of the peace, take possession of the Equipment and take any other legal right available to it and (iii) Seller shall be entitled to rcceivc damages actually incurred by it as a result of such deHluIt including loss of profits. d) The above remedics shall be cumulative and shall preclude the exercise of any Seller's rights available to it under law. Failure to enforce a breach shall precludc latcr enforcement. 8. A TTOnNEY'S fEES. In the event of any legal action brought to enforce this Agreemcnt, the prevailing party shall be entitled to a reimbursement of its reasonable attorney's fees and costs incurred at both trial and on appeal. 9. AMENDMENTS AND CONSTRUCTION. Any changc in the terms of this Agreement or to any ofthc Schcdules attached hereto and made a part hereof or any waiver or termination hercundcr shall be cffective only in writing signed by an authorized representative of Buyer and authorized representative of Scller. This Agreement has becn finally acceptcd in the State of Florida and its construction shall be governed by the laws of the State of Florida. 10. GOVERNING LAW; .JlIRISDICTlON, This agreement shall be governed by and construed in accordance with thc Laws of the State of Florida (exclusive of its conflict of law provisions), and all obligations of the parties created hereunder are performable in Sunny Isles Beach, Miami-Dade County, Florida. Buyer agrees that any action or proceeding arising out of or relating to this Agreement shall be instituted and maintained by it in any State or Federal Court of general jurisdiction in Miami-Dade County, Florida. Parties irrevocably submits to the jurisdiction of such Courts and waives any objection it may have to either the jurisdiction or vcnue of such court. I I. FORCE MAJEURE. Ncither party hereto shall be liable for the failure to perform any of its obligations under this Agreement ifsuch failure is caused by the occurrencc of any force majeure bcyond the reasonable control of such party. including without limitation, fire, flood, strikes and other industrial disturbances, failure of supply or suppliers, failurc of transport. accidents, war, riots, insurrections, acts of God or orders of governmental agencies. 12. RISK Of LOSS, Risk of loss for any damage to or destruction of the Equipment cOlllmences upon delivery to Buyer's premises rcgardless of any breach by Scller and shall be borne by Buyer except for damage due to the willful conduct of Seller. 13. RELATIONSHIP Of PAnTIES. Parties agree that Seller is not an employee of the Buyer. but is retaincd solely as an independent contractor and as such, neither Seller or its agents are entitlcd to any benefits granted to Buyer's officials, officers and employees, 14. NOTICES, All notices and communications hereunder shall bc in writing and shall be dcemed given when scnt postage prepaid by registered or ccrtified mail, return receipt requested and, if intended for the Buyer to A. John Szerlag, City Manager, with a copy to Hans Ottinot, City Attorney, City of Sunny Isles Beach, 18070 Collins Avenue, Sunny Isles Beach, Florida 33160, and, if intended for Seller, shall be addressed to BEAR PAW SYSTEMS, INC., 21961 U,S. 19 North. Cearwater, Florida 33765. 15. ENTIRE AGnEEMENT. BUYER HAS CAREFULLY READ ALL PROVISIONS OF THIS AGREEMENT AND ACKNOWLEDGES THAT THIS AGREEMENT CONSTITUTES THE FINAL EXPRESSION OF THE PARTIES AGREEMENT AND IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS OF SUCH AGREEMENT. UNTIL ACCEPTED AND SIGNED BY AN OFFICER OF SELLER AT ITS PRINCIPAL OFFICE THIS AGREEMENT SHALL NOT BECOME EFFECTIVE AND SHALL NOT CONSTITUTE A BINDING CONTRACT. S\B