License & Service Agreement

CENTERPILOT, LLC ATTENTION: THIS IS A LICENSE, NOT A SALE.  THIS PRODUCT IS PROVIDED UNDER THE FOLLOWING LICENSE AND SERVICE AGREEMENT AND ALL APPLICABLE ADDENDUMS, EXHIBITS, AND AMENDMENTS THERETO (“LICENSE”) WHICH DEFINE WHAT CUSTOMER MAY DO WITH THE PRODUCT AND CONTAIN LIMITATIONS ON WARRANTIES AND/OR REMEDIES.  THIS LICENSE IS GRANTED BY CENTERPILOT, LLC.

NOW THEREFORE, for the agreement contained herein and other good and valuable consideration, CENTERPILOT and CUSTOMER agree to be bound as follows:

1. LICENSE:

CENTERPILOT agrees to provide CUSTOMER with Centerpilot Food Program which includes Internet-based software, access to Internet-based database software, as well as any images and text incorporated into the software, the software’s accompanying printed materials, a License, and documentation (together called the “Product”) and CENTERPILOT grants CUSTOMER a license to use the Product in accordance with the terms of this License.  CUSTOMER agrees that any supplemental Software Updates, forms, and other supporting materials provided to CUSTOMER as part of Support Services provided by CENTERPILOT for the Product shall be considered part of the Product and subject to the terms and conditions of this License.  CENTERPILOT maintains all copyright and other rights as exclusive and sole owner of the Product. CUSTOMER hereby agrees to pay the Initial License Fee as noted in EXHIBIT A.

1. SOFTWARE UPDATE SERVICES:
2. Regulatory Software Updates: CENTERPILOT has attempted to develop a Product that acts as a general information management system appropriate to organizations operating under the auspices of the United States Department of Agriculture’s Child and Adult Care Food Program specifically focusing on oversight of child and adult day care centers offering those services with features within the Product that are appropriate to federal CACFP regulations in-effect as of the License Date.  Changes to the federal CACFP regulations may lead CUSTOMER to request in writing material changes in the Product from CENTERPILOT. (“Regulatory Software Updates”).  CENTERPILOT provides the Product on an “AS IS” basis as noted in Paragraph I below, but CENTERPILOT will provide as many Regulatory Software Updates as required each year.  In compensation for Regulatory Software Updates, CUSTOMER hereby agrees to pay Regulatory Maintenance Fee as specified in EXHIBIT A below or as periodically amended by sixty (60) day written notice to CUSTOMER, with such amended prices never exceeding a 10% increase year-to-year.  Notwithstanding the previous, if the creation of any Regulatory Software Update requires more than 100 hours of labor by CENTERPILOT (a “Major Regulatory Software Update”), CUSTOMER hereby agrees that it will pay for Major Regulatory Software Updates at a fee computed by CENTERPILOT at the time of the request based on the number of labor hours the Major Regulatory Software Update requires multiplied by the Custom Development Hourly Rate as specified in EXHIBIT A below or as periodically amended by sixty (60) day written notice to CUSTOMER, with such amended prices never exceeding a 10% increase year-to-year (the “Update Fee”).

2. Custom Software Updates: CUSTOMER may from time to time find it advantageous to request certain modifications to the Product that are not required to conform to federal CACFP regulations, but that would be of specific use to the CUSTOMER.  These modifications could include, but are not limited to, changes to user interface to improve data entry capabilities, additions to support certain file export formats, new functions to support state and federal regulatory programs distinct from the CACFP, etc.  CUSTOMER may request these changes to the Product in writing from CENTERPILOT (“Custom Software Updates”) at its discretion.  CENTERPILOT may choose to perform Custom Software Updates at its sole discretion.  For any Custom Software Update requested and performed by CENTERPILOT, CUSTOMER hereby agrees those update charges would be determined on a case by case basis, separate from the annual maintenance fee.

CENTERPILOT may choose at its sole discretion to charge a lower Update Fee or to charge no Update Fee for certain Major Regulatory Software Updates and Custom Software Updates, but failure to charge an Update Fee at any time shall not be construed as a waiver or relinquishment of the right to charge Update Fees for other Major Regulatory Software Updates or Custom Software Updates. If CUSTOMER requests CENTERPILOT to provide a Major Regulatory Software Update or Custom Software Update, CUSTOMER hereby agrees to pay the Update Fee as indicated to CUSTOMER by CENTERPILOT.   Any Major Regulatory Software Updates, Regulatory Software Updates, or Custom Software Updates provided by CENTERPILOT for the Product shall be considered part of the Product and subject to the terms and conditions of this License, with such copyright, ownership and other rights to the Product remaining with CENTERPILOT.

1. CUSTOMER SUPPORT SERVICES:
2. Telephone & Email Support: For up to five calendar months following the License Date, CENTERPILOT will provide an unlimited number of hours of telephone- and email-based technical support, training, or general assistance to CUSTOMER, with telephone-based support offered during normal business hours (9am to 5pm CST Monday – Friday excluding holidays) and email-based support responses within 1 business day.  Beginning on the fifth month following the License Date, CUSTOMER will be subject to the Support Plan ordered by the CUSTOMER, with the description of and pricing for Support Plans described in EXHIBIT A and as periodically amended by sixty (60) day written notice to CUSTOMER, with such amended prices never exceeding a 10% increase year-to-year.  For purposes of computing costs associated with these Support Plans, time per support shall be computed such that time spent on any Call or Email shall be rounded to the nearest 15 minute increment, with a minimum of 15 minutes per Call or Email.  Calls include both telephone calls originating with a CUSTOMER to CENTERPILOT, and telephone calls originating at CENTERPILOT in return of a previous Call or Email by CUSTOMER.  Calls or Emails used solely for administrative purposes, including invoicing questions or new orders placed, shall not be subject to or included in Support Plan cost computations, regardless of length of time spent on the Call or Email.  In addition, Calls or Emails used solely to report any bona fide Product errors or malfunctions, or to request any Regulatory Software Updates, shall not be subject to or included in Support Plan cost computations, regardless of length of time spent on the Call or Email. 

2. On-line Claiming Submission Fees: The Product contains a web-based component that can be used by the Customer’s Providers (“On-line Claiming”).  Usage of On-line Claiming will require each Provider to have a computer running Windows with a current version of Internet Explorer.  CENTERPILOT does not offer any support directly to Customer’s Providers; all of Customer’s Providers must be trained and offered technical support by CUSTOMER.  Each month, Customer’s Providers using On-line Claiming will submit claim information to the CUSTOMER’s Sponsor software via a CENTERPILOT-controlled server(s).  For each month in which a claim is submitted, CUSTOMER hereby agrees to pay the On-line Claiming/usage Fee for each of the Customer’s Providers submitting a claim at the price as specified in EXHIBIT A below or as periodically amended with 120 day written notice to CUSTOMER, with such amended prices never exceeding a 10% increase year-to-year and with such price increase always effective as of October 1^st of any year.  CENTERPILOT hereby agrees to provide access to On-line Claiming 24 hours a day, 7 days a week, subject to scheduled downtime for maintenance or unscheduled downtime due to unforeseen events. This guarantee specifically excludes ensuring either CUSTOMER or Customer’s Providers have access to the Internet.

1. TRAINING SERVICES:

CUSTOMER agrees to pay for Training Services per CUSTOMER personnel trained at rates as indicated in EXHIBIT A below or as periodically amended by CENTERPILOT with sixty (60) days written notice to CUSTOMER to include more training options and/or different pricing as course curricula are changed.  CUSTOMER may, at their discretion, request On-Site Training from CENTERPILOT.  On-Site Training fees are separate from the annual maintenance fee and charged on a case by case basis.

1. DATA CONVERSION SERVICES:

CUSTOMER may possess pre-existing information systems which store information of use to the Product software.  At CUSTOMER’s sole discretion, CUSTOMER may request CENTERPILOT to convert data from CUSTOMER’s existing information systems into a format compatible with the Product software.  To the extent this is possible, CENTERPILOT will convert pre-existing data into data compatible with Product software and import that data into the Product software (a “Data Conversion”), for a fee noted in EXHIBIT A below (the “Data Conversion Fee”).  If CUSTOMER requests CENTERPILOT to perform a Data Conversion, CUSTOMER hereby agrees to pay the Data Conversion Fee as indicated to CUSTOMER by CENTERPILOT. 

1. PRODUCT USAGE GUIDELINES:
2. The Product software exists as two primary components:
3. Sponsor component – Web based program with a set of features and functions applicable to Sponsoring Organizations operating under the auspices of the CACFP, with “Sponsor Organization” as defined in Title 7 Chapter 2 Part 226.2 of the Federal Code.
4. On-line claiming component – Internet-based application accessible by CUSTOMER’s providers, with a set of features and functions applicable to child care center operators.
5. A combination of both the Sponsor component and the provider component is the option for the center which maintains a direct contract as a “self-sponsored site” with the state agency.
6. CUSTOMER can use the web based program software for the Sponsor component on an unlimited number of computers (both in office and off-site) subject to the software’s technical and performance limitations. Each computer used by CUSTOMER must meet the then-published minimum requirements for the Product.
7. CUSTOMER can make On-line Claiming available to any of it’s Child Care Sites with which CUSTOMER is currently engaged as a Sponsor as per CACFP federal guidelines (the “Customer’s Sites”).
8. CUSTOMER can distribute any Product forms to any of the Customer’s Sites.
9. CUSTOMER may not use the Product or make copies of it or any component except as permitted in this License.
10. CUSTOMER may not translate, reverse engineer, de-compile, disassemble, alter, duplicate, or create derivative works of any component of the Product.
11. CUSTOMER may not modify the Product or merge all or any part of the Product with any other software or system.
12. CUSTOMER may not rent, lease, assign, or transfer the Product to any third party except as permitted in this License.
13. CUSTOMER may not use any third party’s software, forms, or any other materials in conjunction with the Product without written approval from CENTERPILOT. CUSTOMER may not grant any third party access to any portion of the Product for any reason without written authorization from CENTERPILOT, except as permitted above.
14. CUSTOMER must maintain in good working order all equipment needed to use the Product, including:
    • Office LAN, Network Server, and all computers using Product
    • Internet access for LAN, Network Server, and all computers using Product

1. TERM:

This License shall remain in effect only for so long as CUSTOMER is in compliance with the terms and conditions of this License. Either party may terminate this license upon providing ninety (90) days written notice to the other party.  This License will automatically terminate if CUSTOMER fails to comply with any of its terms or conditions, including all payment conditions.  The Remedies; Limitations of Warranties and Liability; and Indemnification paragraph set out below shall continue in force even after any termination.

1. REMEDIES; LIMITATION OF WARRANTIES AND LIABILITY; AND INDEMNIFICATION:

THE PRODUCT IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE.  THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PRODUCT IS ASSUMED BY CUSTOMER.  NEITHER CENTERPILOT NOR ANY CENTERPILOT SUPPLIERS OR PARTNERS SHALL HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF CENTERPILOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE.  CENTERPILOT IS ALSO NOT RESPONSIBLE FOR CLAIMS BY A THIRD PARTY.  CENTERPILOT’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER AND THE MAXIMUM AGGREGATE LIABILITY OF CENTERPILOT’S SUPPLIERS OR PARTNERS SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE PRODUCT PURSUANT TO THIS LICENSE WITHIN THE 12 MONTHS PREVIOUS TO THE DATE OF THE CLAIM.  THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR A FUNDAMENTAL BREACH.  SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.  Furthermore, CUSTOMER agrees to indemnify and hold CENTERPILOT harmless from and against any and all costs, liabilities, claims, or demands (including reasonable attorney’s fees and expenses of any kind whatsoever) that arise or result from CUSTOMER’s use, reproduction or distribution of the Product, documentation, or promotional or sales materials.  Upon the breach of this License by CUSTOMER, CENTERPILOT shall be entitled to the collection of reasonable attorney fees and expenses incurred in the enforcement of this License, whether or not such enforcement results in a final court adjudication, from the CUSTOMER.  In addition to these rights, in the event CUSTOMER fails to comply with the payment conditions specified in Exhibit A – including the timely payment of all invoices – CENTERPILOT reserves the right to disable CUSTOMER’s use of the Product, require pre-payment for all subsequent materials or services, and/or terminate this License.

1. U.S. GOVERNMENT RIGHTS:

With respect to any acquisition of the Product by or for any unit or agency of the United States Government (the “Government”), the Product shall be classified as “commercial computer software”, as that term is defined in the applicable provisions of the Federal Acquisition Regulation (the “FAR”) and supplements thereto.  The Product was developed entirely at private expense, and no part of the Product was first produced in the performance of a Government contract.  If the Product is supplied for use by a Federal agency, the Product is restricted computer software delivered subject to the terms of this License and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14(ALT III), as applicable.  The contractor/manufacturer is CENTERPILOT, LLC.

1. GENERAL:

1. This License is the entire agreement between CENTERPILOT and CUSTOMER, superseding any other agreement or discussions, oral or written, and may not be changed except by a signed agreement by both parties.
2. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this License or to exercise any right under this License shall not be construed as a waiver or relinquishment to any extent.
3. If any provision of this License is declared by a Court of competent jurisdiction to be invalid, illegal, or unenforceable, such a provision shall be severed from the License and the other provisions shall remain in full force and effect.
4. The Parties to this License are independent contractors without power to obligate the other Party.
5. This License shall be governed by and construed in accordance with the laws of the State of Texas.
6. CUSTOMER may not assign any of its rights, obligations, duties or interests under this License to any other entity unless first obtaining the written consent of CENTERPILOT. CUSTOMER may not transfer the use of the Product to any other company or individual unless first obtaining the written consent of CENTERPILOT.
7. Each party acknowledges that the specific terms of this Agreement, including pricing, constitute a confidential business relationship between the parties. Both parties agree that they will not reveal the terms of this Agreement to any third party except as required to do so by law or administrative regulation.
8. CENTERPILOT’s performance pursuant to all provisions of this License shall be excused to the extent that CENTERPILOT fails to perform on account of any cause outside of CENTERPILOT’s control including, without limitation, an act of God, war, civil disturbance, court order, legislative, administrative, or regulatory action, catastrophic weather conditions, failure or fluctuation in electrical power or other utility services or any interruption in the transmission of information on the Internet to or from the Internet portion of the Product.

By clicking “I agree” the customer acknowledges he/she has read and agrees to the licensing agreement and payment schedule as outlined in Exhibit A.

EXHIBIT A:  LICENSE AND SERVICE PRICING

1. PAYMENT SCHEDULE:

CENTERPILOT agrees to charge CUSTOMER and CUSTOMER agrees to pay for License and Service options as listed herein and invoiced periodically, with all invoice payments due within 10 days of receipt of Invoice or as noted by CENTERPILOT’s current Payment Policy, unless otherwise indicated.

*Invoices may include additional sales tax and/or shipping & handling charges, above these listed prices, as applicable.