This Gun Dealer Portal Service Agreement is applicable to the use of the Gun Dealer Portal service:
1. Definitions. Capitalized terms shall have the meanings ascribed to them below:
(a) "Agreement" shall mean this service agreement, together with all exhibits, schedules and addenda thereto, if any, into which this service agreement is incorporated.
(b) "Application" shall mean the software or program provided by County to enable Customer to access information stored in the Database through the Gun Dealer Portal Web Portal.
(c) "Authorized Purposes" shall mean use of the System and any information contained therein solely in connection with the furtherance of official, legal and valid criminal justice or governmental endeavors.
(d) "Customer" includes the named entity that registers with the County subject to this Agreement. The term "Customer" extends to the employees of the named entity authorized to access the System.
(e) "Database" shall mean the proprietary Gun Dealer Portal, a compilation or collection of information about pistol permit records and other data sources created and owned by County.
(f) "Documentation" shall mean all instructions, manuals, user guides and other materials provided by County that are necessary for the use of the System and all subsequent versions of them provided pursuant to the terms of this Agreement, whether printed or in electronic form.
(g) "Event of Default" shall mean any one or more of the occurrences listed in Section 10 (b) when experienced by the Customer.
(h) "Revisions" shall mean any corrections, bug fixes, modifications, conversions, enhancements, updates, upgrades, new versions or derivative works, authorized or unauthorized and made by any party to the System.
(i) "Service" refers to the process that takes place when the Application is accessing the Database.
(j) "System" shall mean the Application, Web Service and/or the Database that County owns and/or has the right to license.
(k) "Territory" shall mean the United States and its possessions and protectorates.
(l) "Vendors" shall mean third parties that provide software or hardware compatible with and necessary for appropriate use of the System, but who are not parties to the Agreement.
(m) "Web Service" shall mean the Gun Dealer Portal service where the Customer passes requests for data in an appropriate format via a secure channel.
2. Application Agreement: Subject to each of the terms and conditions of this Agreement, County hereby grants Customer a limited, revocable, non-transferable and non-exclusive service capability, without right of sublicense, to access and use the System only in the Territory and only gaining access to the System by using the Application(s) to query the Database for information stored on or in the Database, solely to use such information for Authorized Purposes. Before receiving access to the System, Customer shall register with County via the Web Service, to be approved thereafter. County shall have the sole discretion to approve said Customer, which approval shall not be unreasonably withheld. County shall provide each approved Customer with a designated user name and password to enable access to the System. Customer is responsible for compliance with the terms and conditions of this Agreement by every entity or employee who accesses the System.
Web Service Agreement : Included in the Services are the initial labor and expenses to create a data exchange between the Database and the Customer's system and the ongoing costs to maintain the data exchange between the systems. Customer will be responsible for any charges associated with modifying the Customer's system to allow the user to submit queries and display associated results. Customer will pass requests for data via the Web Service. A list of authorized employees will be provided to County and updated as necessary by the Customer. Each request for data will be for a single transaction and will identify the Customer requesting the information by passing a Customer identifier that will be validated against a list of valid Customers. Once the Customer has been validated, County will search its Database and return any matching information via the Web Service. The Database will include Suspension and Revocation data and/or other data sources, and the functionality in the Web Service available for purchase is Addendum/Addenda to Permit.
(a) Security Measures. Customer shall store and use the System in such a manner that access and use of it is limited to Customer's authorized employees who need to obtain information stored on the Database in order to fulfill Customer's Authorized Purposes. Customer shall take care and precaution to protect the security of and access to the System. Customer shall limit the number of employees who use the System, by taking care to preserve the secrecy of any information needed to initiate Customer's access to the System and to preserve the secrecy of the data stored on the Database. Customer shall be solely responsible for any breaches of these confidentiality procedures and for any unauthorized disclosures of the data contained in the System. In the event of an unauthorized disclosure of any such data, Customer shall comply with all applicable laws relating to unauthorized disclosures of personal information, including any notifications required thereunder. All Customers shall protect the confidentiality of login information and shall not disclose login information to any other person, except an administrator of Customer.
(b) Other Restrictions. Customer shall not make copies or duplicate the System or any portion of it or distribute to any third party.
(c) Use of System. Customer shall permit the System to be used only in compliance with the terms and conditions of this Agreement.
(i) Customer shall not remove or alter any copyright, trademark, patent or other intellectual property or proprietary notices from the System, the Documentation or any part of the foregoing.
(ii) Customer shall adopt and enforce internal policies, procedures and monitoring mechanisms as are necessary to ensure that the System is used only in accordance with the terms and conditions of this Agreement. Upon request by County, Customer shall provide evidence satisfactory to County that use of the System complies with the Agreement.
(iii) Customer shall use the System only for Customer's own Authorized Purposes and shall not:
(1) Permit any affiliates or third parties to use the System except as otherwise expressly provided in this Agreement;
(2) Permit the entry and/or analysis of any affiliate or third party information; or
(3) Permit access to or use of the System in the operation of a service bureau, by timeshare, in the operation of a service provider model or any other means.
(iv) Other than entry of data as permitted herein, Customer shall not and shall not allow anyone other than County to modify, translate, alter, correct, update, reverse engineer or decompile the System or to create derivative works from it, the Documentation or any part of the foregoing (including any screen prints or the "look and feel" of the Application).
(v) Any data entered by Customer shall pertain to Customer's own records and information and/or shall be accurate to the best of Customer's knowledge.
(vi) Customer shall promptly notify County in the event Customer becomes aware that any information in the System is inaccurate or outdated.
(vii) Customer shall not use any unauthorized device, communications, software or routine to interfere or attempt to interfere with the proper working of the System.
(viii) Customer shall only permit the System and the information to be used for lawful purposes and in a lawful manner. Without limiting the foregoing Service Agreement shall not use the System:
To transmit, retransmit or store material that violates any international, federal, state or local laws or regulations;
In such a way that violates or infringes the rights of any persons, including without limitation, copyrights, patents, trademarks, service marks, trade secrets and other proprietary rights;
In a manner potentially libelous, threatening, defamatory, obscene, indecent, pornographic or in any way that could give rise to any civil or criminal liability under U.S. or international law;
In any manner that may infringe the privacy or civil rights of any individual or endanger the privacy of information belonging to others directly or indirectly; or
In a manner that puts others at risk of receiving bugs, viruses, worms, trap doors, Trojan horses or other harmful code or properties.
(d) Availability. The System may not be available for Customer's access or use from time to time without notice from County, and County shall bear no liability for such unavailability. County collects and compiles the information stored on the Database from public records and other sources, and Customer acknowledges that the quality of the information stored on the Database is limited to the quality of the source of such information and will not hold County responsible for any inaccuracy in the information stored on the Database. Customer acknowledges and agrees that the information in the Database may not be the most current or accurate due to the necessary delay between the receipt of information and when such information may be entered in the Database. Customer shall not rely on the information stored on the Database to determine whether any particular individual has been convicted or acquitted of a particular charge.
(e) Use of Information. Customer shall only use and shall only permit its authorized employees to use the information obtained through the System to carry out its valid, legal and official Authorized Purposes and for no other reason. Customer and its Users shall not disclose the information obtained through the System to any third party except when necessary to carry out its Authorized Purposes. Without limiting the foregoing, Customer and its Users shall not use the information obtained through the System to discriminate, threaten or harass any person. Customer shall not disclose the authentication information used to connect to County. Customer shall not circumvent any authentication, access control, or security mechanism of any County service, host, network, or account of any kind.
3. Support Services: County shall provide support services in accordance with the terms outlined in the final agreement.
4. Title. The rights granted to Customer in this Agreement constitute a service and not a sale. Title to the System, Application(s) and Database, including all patents, copyrights, trademarks, trade secrets, and all other intellectual property and proprietary rights embodied by or arising out of the System, including any Revisions and the Documentation, shall at all times be owned by and belong exclusively to County and its licensors and Customer shall have no interest in it. Customer acknowledges that County has expended significant amounts of time, effort and money to collect and compile the information into the Database and to create the Applications that access it. Customer acknowledges County' exclusive ownership, rights and title to the Application(s), Database and System (including but not limited to any Offender Data provided or entered by Customer), and represents that Customer has no ownership interest in the System or any portion thereof. Customer further represents that it shall not question or attack the validity of County' ownership or right to license use of the System, or any intellectual property rights embodied by and arising out of the System at any time during or after the term of this Agreement.
5. Vendors. Customer acknowledges and agrees that to use the System satisfactorily and correctly, it may be required to use software and/or hardware provided by Vendors. Customer acknowledges and agrees that any licenses and agreements with such Vendors are entirely separate from the service arrangement contained in this Agreement and while the System may be compatible with such software or hardware, neither constitutes part of the other and County bears no responsibility for the software or hardware provided by Vendors, even if County assists in arranging its purchase or delivery to Customer. Customer bears the responsibility and risk of acquiring and maintaining any and all computer hardware and software, including without limitation, any Internet connection. All Internet use policies, virus protection software, data storage and protection and other management of Internet access and activity are Customer's sole responsibility.
6. Export Regulations. The Customer represents and warrants that it shall comply in all respects with the export and re-export restrictions applicable to the System as promulgated by the U.S. Government, including the U.S. Department of Commerce from time to time.
(a) Confidential Information. Customer and County acknowledge that in the course of their relationship, they will receive, work with, and be exposed to certain confidential information and knowledge concerning the business of the other party and its affiliates, whether or not reduced to writing, including, without limitation, information and knowledge pertaining to products, inventions, developments, innovations, data, know-how, formulations, uses, research, processes, technology, designs, materials, ideas, plans, trade secrets, customers, proprietary information, accounting data and other information relating to the business of Customer or County (collectively, "Confidential Information"), which each party desires to protect from unauthorized disclosure or use.
(b) Protection and Use. Each party hereto acknowledges that the Confidential Information of the other is confidential and agrees not to disclose such Confidential Information to anyone outside of the receiving party without the prior written consent of the disclosing party in each instance of proposed disclosure. Additionally, the receiving party agrees that it will not, without the prior written consent of the disclosing party, use the Confidential Information for any purpose other than to fulfill its obligations to the other party under this Agreement.
(c) The following information shall not be subject to the confidentiality restrictions set out in this Section 7:
(i) Information that, at the time of disclosure, is generally known to the public as evidenced by written publication;
(ii) Information that, after disclosure, becomes generally known to the public by written publication through no fault of the receiving party (but only after, and to the extent that, it becomes generally known to the public by written publication);
(iii) Information that the receiving party can show was acquired through a third party not under an obligation of confidentiality to the disclosing party; and
(iv) Information that the receiving party is required to disclose in response to a valid court order or is otherwise required to disclose by law, but only if the receiving party has given the disclosing party prompt written notice of the potential for such disclosure and the opportunity to seek a protective order or obtain other relief to preserve the confidentiality of the Confidential Information.
8. Payment. Customer shall pay County according to the terms and amounts set forth below.
(a) Monthly License Fees. Customer shall pay license fees to County on a monthly basis during the term of this Agreement as specified in the Order Form. The License fee begins the month that access to the User Licenses is granted and will be billed monthly in advance. Each User License from the Application has the ability to create up to 100 watches unless noted otherwise on the Order Form, and this watch limit can be set at the Customer's user, agency or state level. For the Web Service, details on what database(s) and functionality have been purchased are available on the Order Form.
(b) Increase. County reserves the right to increase the amount of the License Fee by giving written notice to Customer at least 30 days prior to the expiration date of the current term.
(c) Effective Date. The effective date for use of the System begins on the date when this Service Agreement is signed (the "Effective Date").
(d) Payment Due. All amounts owed shall be payable within 30 business days of Customer's receipt of County' invoice. Any amount payable to County and not paid within 30 days shall accrue interest at a rate of the lower of 1.5% per month or the maximum rate permitted by applicable law from its due date until County actually receives payment. Customer shall also pay County all costs and expenses of collection, including without limitation, reasonable attorneys' fees.
(e) Taxes. Customer shall pay all sales, use, and other taxes (collectively and excluding taxes on County' income, "Taxes"), arising out of or related to this Agreement or Customer's use of the System. If County pays, remits, or otherwise becomes liable for such Taxes, Customer shall reimburse County for them.
(f) No Set Off. Customer acknowledges that it has no right of set off or recoupment under this Agreement.
9. Term. The initial term shall continue in effect for 1 year commencing on the Effective Date and shall renew automatically for successive one-year terms measured from each anniversary of the Effective Date unless terminated as provided below. Either party may terminate this Agreement by providing the other party written notice of its intention not to renew the Agreement upon expiration of the current term at least 30 days prior to the expiration of such current term.
10. Termination. The parties may also terminate this Agreement on the following terms and conditions:
(a) The parties may terminate this Agreement by mutual consent upon such terms as they may agree in writing.
(b) County may, in its sole discretion, terminate the Agreement immediately without notice to Customer if any of the following occur(s) (each an " Event of Default"):
(i) If Customer fails to pay County any amounts due and owing after receiving 30 business days' notice from County;
(ii) If Customer files a petition in bankruptcy or is the subject of an involuntary petition in bankruptcy that is not dismissed within 60 days after the effective filing date thereof;
(iii) If Customer is or becomes insolvent;
(iv) If Customer makes or submits any material false statement or other material misrepresentation to County; or
(v) If Customer breaches any material term of this Agreement, including without limitation, the provisions pertaining to the License, the use and security of the System and the information, the confidentiality provisions, or the Assignment clause.
(c) Post-Termination. Upon termination or expiration of this Agreement for any reason, Customer shall comply with the following post-termination obligations:
(i) Within 30 business days after the effective date of termination or expiration, Customer shall pay to County any amounts due and owing to County under this Agreement.
(ii) Within 30 business days after the effective date of termination or expiration, Customer shall return to County, or at County' option, destroy any disks, tapes, documentation, drawings, codes, blueprints, notes, memoranda, specifications, devices, documents or any other tangible or intangible embodiment of the System, the Applications, the Documentation, or the Database, in whole or in part, including without limitation, all copies contained in any computer memory or data storage devices and any and all screen prints.
(iii) The confidentiality and title provisions shall survive any termination, expiration or cancellation of this Agreement.
11. Representations and Warranties. Customer represents and warrants that:
(a) No Event of Default has occurred.
(b) Customer shall only use the System to carry out its valid, legal and official Authorized Purposes and for no other reason.
(c) Customer is duly authorized to provide data to County and consent to County' dissemination of the data as contemplated herein, and such dissemination does not violate state or local laws restricting use of criminal records.
(d) Customer shall take reasonable steps to ensure that all data provided to County is accurate and shall promptly notify County of any errors in or corrections to said data. All such notices shall be accompanied by supporting documentation and shall be sent to County at the following address (unless otherwise designated by County):
Chautauqua Co. Sheriff’s Office
Pistol Permit Division
3 North Erie Street
P.O. Box 128
Mayville NY 14757
Furthermore, each party represents and warrants that;
(a) It is duly organized and in good standing under applicable state laws.
(b) It has the authority and ability to enter into this Agreement and satisfy the requirements set forth in it.
(c) Carrying out its obligations under this Agreement will not violate any agreement or obligation between it and a third party.
(d) It shall comply with all applicable local, state and federal laws, statutes and regulations in the performance of its obligations hereunder.
12. Indemnification. Customer agrees to indemnify, defend and hold harmless County, its affiliates and each of their respective officers, directors, employees, agents and assigns from and against any and all claims, damages, losses, deficiencies and costs arising out of or relating to Customer's use of the System or the unauthorized disclosure of any data contained therein.
13. Disclaimer of Warranties. County warrants only that the application will substantially conform to the documentation. County does not warrant that the database or the information stored in it is error free. County disclaims any and all other warranties, conditions or representations, express or implied, concerning the system, any data stored on or generated by the system, including the database, or any services rendered by County. County hereby disclaims all implied warranties, including without limitation, the warranties of merchantability, fitness for a particular purpose, non-infringement, quiet enjoyment or warranties concerning the accuracy, adequacy or timeliness of any information provided through the system. County does not warrant that the Web portal will be accessible on any uninterrupted basis, error-free or completely secure.
14. Limitation of Liability and Actions. To the extent permitted by law, County' maximum liability to Customer for any losses or damages arising out of this agreement or otherwise, whether the claim arises under contract, tort or another theory, shall not exceed the payment paid by Customer under this agreement within the one-year period prior to the alleged act or omission giving rise to County' alleged liability. County shall not be liable for acts or omissions of carriers, service providers, or unauthorized modifications of the applications. In no event shall County be liable for any indirect, special, consequential or punitive damages (including without limitation loss of data, loss or economic loss) in connection with or arising out of this agreement or otherwise, even if County has been advised of the possibility of such damages. Customer shall bring any and all claims and actions against County no more than one year after the date of the alleged act or omission giving rise to County' alleged liability. Customer acknowledges that County' pricing reflects the foregoing allocation of risk and the limitation of liability in this agreement.
15. Audit. Customer understands and agrees that County may review Customer's use of the System to ensure compliance with the terms of this Agreement. Violations discovered in any review or audit may be subject to immediate action, including the termination of Customer's access to the System.
16. Remedies. No right or remedy of County shall be exclusive of any other, whether at law or in equity, including without limitation damages, injunctive relief, attorneys' fees and expenses.
17. Beneficiary. In no event shall this Agreement or any portion hereof, be construed to create any third party beneficiary.
18. No Assignment. Customer shall not sell, assign, sub-license, encumber or otherwise transfer this Agreement, ability to access the System, the Documentation or any portion of the foregoing without the prior express written consent of County (which consent shall not be unreasonably withheld). For the purposes of this Section 19, a change in control of Customer shall be deemed an assignment. This Agreement shall inure to the benefit of and be binding on the permitted successor and assigns of the parties.
19. Notice. All notices required under this Agreement shall be in writing, addressed appropriately according to the contact information specified at the end of this Agreement unless otherwise specified by the parties and sent by either certified mail, return receipt requested or overnight courier. All notices shall be deemed to have been duly given or made either 5 business days after mailing or one day after delivery to the courier, respectively.
20. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the U.S. and the State of New York (without regard to its conflicts of laws principles). Customer hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Chautauqua County, New York for any action in any way relating to this Agreement or any relationship between the parties.
21. Force Majeure. The performance by County of any obligation imposed upon it by this Agreement shall be excused if such failure is caused by, or attributable to, any event or circumstance beyond County's own direct control, including but not limited to, any act of God, war, riots, terrorist acts, fire, explosion, flood, strike, lockout, injunction, inability to obtain fuel, power, raw materials, labor, containers, communication network failures, transportation facilities, accident, breakage of machinery or apparatus, or national defense requirements.
22. Severability. Each provision of this Agreement is severable from all other provisions of this Agreement. If one or more of the provisions of this Agreement shall be prohibited or declared invalid under applicable law, such provisions shall be enforced to the fullest extent permitted by applicable law and the remaining provisions of this Agreement shall remain in full force and effect.
23. Integration. This Agreement, together with all exhibits, schedules and addenda thereto, if any, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous oral, written and/or electronic agreements and understandings between them relating to the subject matter hereof. No modification shall be made to this Agreement unless expressed in writing signed by authorized representatives of both parties except as otherwise provided in this Agreement.
24. Waiver. None of the terms or provisions of this agreement may be waived, amended, supplemented or otherwise modified except by a written instrument executed by the parties. The delay or failure by County to enforce any provision of this Agreement, or to require at any time performance by Customer of any provision hereof, shall in no way be construed to be a waiver of such provision, nor in any way affect the validity of this Agreement or any part hereof, or the right of County thereafter to enforce each and every such provision in accordance herewith. No waiver shall be implied, whether by any custom, course of dealing or delay or failure in exercising any rights or remedies hereunder. No instance of waiver shall imply any obligation to grant any similar, future or other waiver.
25. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original instrument and all of which together shall constitute a single Agreement.
26. Reservation of Rights; Changes to Agreement. All rights not expressly granted herein are hereby reserved by County. Nothing in this Agreement shall be construed as granting Customer any right or license in or to any intellectual property rights of County by implication, estoppels or otherwise. Customer agrees to comply with changes to the restricted license and use restrictions contained herein and any other changes to other provisions of this Agreement as County shall make from time to time upon notice to Customer. Such changes may be made from to time by any of the following methods: online announcements, customer bulletins, emails, online "click wrap" amendments, mail, facsimile, announcements in invoices, updates to this webpage, or any other written notice.
Gun Dealer Agreement / Terms
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