HomeMy WebLinkAboutContract 54775 CSC No.54775
ungerboeck Attachment A: Enterprise Edition Order Form
Company Name: City of Fort Worth Number: 0
Attention: David Reeves Date: 09/03/20
Email: David.Reeves(cDfortworthtexas.aov Valid Thru: 10/31/20
Prepared By: Brad Hinton All Prices in: USD
Email: Brad.HintonAungerboeck.com Version Number: V92.0 20201012
Venue Size Less than 125,000 Sq.Ft.or 12,000 sq.m.
Base License Subscriptions Qty Units Unit Price Annual
Ungerboeck for Convention&Exhibition Centers ✓ 400 4,800
Ungerboeck for Arenas and Stadia ✓ 300 3,600
Ungerboeck Software Professional Users 30 Users 50 18,000
Ungerboeck Software Express Users Unlimited 7,200
Total Base Licenses 33,600
Optional Upgrade Subscriptions Qty Units Annual
Sales,Marketing,&Scheduling
Event Management&Operations
Facility maintenance(Job management) ✓ 600
Reporting&Administration
Report Builder ✓ 3,600
Dashboard and report viewer ✓ Included
Crystal License 1 Included
Multi-organizational database' 3 Organizations 4,000
Mobile&Tablet
Ungerboeck Mobile ✓ Included
eCommerce&Web Integration Upgrades
Non Event Orders 1,000 Orders 1,750
Ungerboeck for Financials
Revenue Accounting Advanced 10,620
Payment Portal ✓ Included
Ungerboeck Spreadsheet ✓ Included
GL Account Budgeting ✓ Included
Event GL Budgeting ✓ Included
Cash Book ✓ Included
Credit card processing Non-Standard Processor 3,000
System Integrations
Single Sign-On Authentication-Other Technology(<100 Users) Non-standard Technology 1,000
Cloud Upgrades
Total Optional Upgrades 24,570
Support and Success Plans oty Units Annual
Standard Support Unlimited Included
Success Plan Upgrades
Advanced Success Plan ✓ 20,000
Total Optional Support Upgrades 20,000
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Page 1 of 3
ungerboeck Enterprise Edition Order Form
Company Name: City of Fort Worth Number: 0
Attention: David Reeves Date: 09/03/20
Email: David.Reeves(cDfortworthtexas.(io Valid Thru: 10/31/20
Prepared By: Brad Hinton All Prices in: USD
Email: Brad.HintonAungerboeck.com Version Number: V92.0 20201012
Venue Size Less than 125,000 Sq.Ft.or 12,000 sq.m.
Annual Subscription Summary Annual
Base Licenses 33,600
Optional Upgrades 24,570
Success Plan Upgrades 20,000
Services&Solutions Estimate** See Attachment 2,800
Total Annual Subscription 73,350
Initial Term Subscription Amount
Total Annual Subscription 73,350
Initial Term Covid-19 Adjustment on Software Subscription (14,855)
Total Initial Term Subscription For the Term 10/1/20-9/30/21 58,495
• One-Time
Services&Solutions Estimate' See Attachment 16,800
Total One-Time Amounts 16,800
Total Initial Term Subscription&Services Estimate 75,295
TERMS AND CONDITIONS. Customer's purchase and use of the Ungerboeck Software products and services listed above are subject to the terms and conditions in the Ungerboeck Software
Master Subscription Terms&Conditions.Access to data in Ungerboeck Software for known individuals(including but not limited to volunteers,contractors,employees,business partners)via
APIs or direct database access requires Ungerboeck's license.
FEES.The Initial Term Subscription amount set forth above,Client may pay in installments which have been mutually agreed upon. Subsequent years'Subscription amounts under this Order
Form are due and payable annually in advance.Except as otherwise provided,all payments shall be made in USD,all purchases hereunder are non-cancelable and non-refundable.
'Services amounts listed represent the estimated time and materials budget.Amounts shown are due and payable upon execution.Amounts will be credited to Client as a deposit from which
actual time and materials usage for the month will be invoiced against the deposit until exhausted. Overages will be invoiced,and any surplus amounts will be credited against future work
"Amounts represent solutions managed services which are billed annually in advance.
The prices set forth in this Order Form do not include USI's out-of-pocket expenses. CLIENT shall reimburse USI for any approved out-of-pocket expenses.
CITY OF FORT WORTH UNGERBOECK SYSTEMS
INTERNATIONAL INC_
lias✓Wi.� � �,
Authorized Signature: V„edew„h;m„n,„w2,�10:,,<<
Name: Valerie Washington Manish Chandak
Title: Assistant City Manager President and CEO
Date: Nov 2,2020 10/20/2020
Bill-To-Contact Name
Bill-To-Contact Email
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Page 2 of 3
ungerboeck Services & Solutions Estimate
Company Name: City of Fort Worth Number: 0
Attention: David Reeves Date: 9/3/2020
Email: David.ReevesCc�fortworthtexas.aov Valid Thru: 10/31/2020
Prepared By: Brad Hinton All Prices in: USD
Email: Brad.Hintonaungerboeck.com Version Number: w2.0_20201012
Estimated Annual—
® C
1 Cloud Migration Services Ungerboeck to provide cloud migration services on a time and materials basis to help 32.00 175 5,600
with tasks such as:
-Setup administrator single sign on integration for the City's administrative users.This
may include having some users who(CVB users)who are not using SSO to access
the Ungerboeck database.This is because CVB users are no on the cities network.
-Complete user roles and access management setup to ensure new access rights
align with best practices.
-Provide CVB updated iEBMS links which can be posed on CVB website.
-Assist Fort Worth with migrating current USLP shared drive documents into
Ungerboeck where appropriate and also helping staff move away from shared drive
document management and retrieving the documents from Ungerboeck.
2 Digital Signage Ungerboeck to provide the Ungerboeck Digital Signage Connector to replace Fort 8.00 175 1,400 2,800
Connector Worth's current custom SQL views which are feeding data to Carousel Digital
Sionaae system-
3 Chase Payment Ungerboeck to integration with Clients Chase Payment Processor. 56.00 175 9,800 -
ocsssor Intearation
4 0.00 - -
5 0.00
6 0.00
7 _ 0.00
8 0.00
9 0.00
10 0.00
Totals 96.00 16,800 2,800
'Services amounts listed represent the estimated time and materials budget.Amounts shown are due and payable upon execution.Amounts will be credited to Client as a deposit from which
actual time and materials usage for the month will be invoiced against the deposit until exhausted. Overages will be invoiced,and any surplus amounts will be credited against future work.
"Amounts represent solutions managed services which are billed annually in advance.
Page 3 of 3
un erboe k Master Subscription
Terms & Conditions
The following describes the terms ("Terms & Conditions" or "Terms") under which Ungerboeck Systems
International, Inc. ("we", "us" or "USI") provides access to Ungerboeck Software for products or services
("the Services")purchased through any Order Form by you ("Customer"). PLEASE READ THESE TERMS
& CONDITIONS CAREFULLY as they govern your use of the Services, and by ordering and using the
Services, you agree to be bound by these Terms. If you are ordering the Services on behalf of an entity,
you represent that you have the authority to bind such entity, its successors, assigns, subsidiaries, and its
affiliates to these Terms & Conditions, in which case the terms"you" and "Customer" refer to such entity,
its successors, assigns, subsidiaries, and affiliates.
NOTICE: COMPETITORS OF USI MAY NOT ACCESS THE SERVICES WITHOUT USI'S PRIOR
WRITTEN CONSENT FOR ANY PURPOSE, INCLUDING MONITORING AVAILABILITY,
PERFORMANCE OR FUNCTIONALITY, OR FOR OTHER BENCHMARKING OR COMPETITIVE
PURPOSE(S).
These Terms & Conditions are effective between you and USI as of the date you place an order for the
Services. These Terms &Conditions shall be fully executed by an authorized signatory for both Customer
and USI and will continue until terminated.
1. DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under
common control with the Customer.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or
malicious code,files, scripts, agents or programs.
"Non-Ungerboeck Applications" means only online applications and ofFline software products
and/or services that are provided by entities or individuals other than USI and are interoperated
with the Services.
"Order Form" means the documents signed by the Customer or an Affiliate placing an order for
the Services, including any addenda or supplements thereto.
"Services" refers to any products or services ordered by you and made available to you by USI.
"Users" means individuals for whom the Services have been ordered and who are authorized by
you to use the Services, by virtue of having obtained user identifications and passwords from you,
or from USI at your request. Users may include but are not limited to your employees, consultants,
contractors and agents and third parties with whom you transact business.
"We", "us", "our", or "USI" refers to the Ungerboeck Systems International entity described in
Section 14 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"You", "your", or"Customer" refers to the company or legal entity using the Services, and any
Affiliates of that company or entity.
"Your data", or"Customer's data" means all electronic data or information submitted by you in
the course of your use of the Services.
"Days" means business days, unless specifically stated otherwise.
"Parties" means USI and the Customer.
"Legal Proceeding" means any claim, investigation, hearing, legal action, or other legal,
administrative, arbitral, or similar proceeding, whether civil or criminal (including any appeal or
review of any of the foregoing).
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"Liabilities" means liabilities, obligations or commitments of any nature whatsoever, asserted or
unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or
unmatured or otherwise.
"Losses" means any amount awarded in, or paid in settlement of, any Indemnifiable Proceeding
(Direct Claim or Third-Party Claim), including any interest accrued, but excluding any Litigation
Expenses.
"Litigation Expenses" means any reasonable out-of-pocket expense incurred in defending an
Indemnifiable Proceeding (Direct Claim or Third-Party Claim) or in any related investigation or
negotiation, including court filing fees,court costs,arbitration fees,witness fees,and attomeys'and
other professionals'fees and disbursements.
"Intellectual Property" means trademarks, copyrights, trade secrets, patents and patent
applications, websites and internet domain name registrations, and other intellectual property and
related proprietary rights, interests and protections.
2. ENTIRE AGREEMENT
These Terms&Conditions and the other documents that are referenced herein constitute the entire
agreement between you, the Customer, and USI (the "Agreement") regarding your use of the
Services, and together they supersede all prior and contemporaneous agreements, proposals,
representations, written or oral, between you and USI. No modification, amendment, or waiver of
any provision in this Agreement will be effective unless in writing and signed by the party against
whom enforcement is sought.
3. ORDER FORMS
These Terms& Conditions are incorporated by reference into each Order Form submitted by you,
the Customer.Together, these Terms and the Order Form comprise a binding agreement between
you and USI, effective as of the date specified in the Order Form and only as it pertains to services
undertaken pursuant to this specific Order Form and continuing for the term stated in the Order
Form. These Terms govern your right to access the Services and use USI's software and
information, which may be updated periodically. USI may amend these Terms at any time in its
sole discretion by posting the amended terms using the following URL:
https://ungerboeck.com/documents/terms/language/
or by providing 15 days prior written notice to you. If there is any conflict between these Terms and
the provisions of your Order Form, the provisions contained in your Order Form shall control,
provided that the appearance of a particular provision in these Terms which is not contained in your
Order Form, or vice versa, shall not constitute conflict for purposes of this section. Any changes to
the Agreement intended to have a general effect shall only be made by an amendment of the
Agreement signed by both parties hereto. No party shall withhold without cause any amendments
requested in good faith.
4. THE SERVICES
4.1 Provision of the Services.
Subject to these Terms, during the term of the applicable Order Form, USI will provide you with a
non-exclusive, non-transferable license to access and use Ungerboeck Software ("the Services")
as upgraded from time to time. You may use the Services only for purposes of performing your
internal business operations. Except for the foregoing license, no other rights in the Services are
granted to you, and the Services remain the sole and exclusive property of USI and its licensors, if
any, whether the Services are separate or integrated with any other products, services or
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deliverables.Access to data in Ungerboeck Software for known individuals(including but not limited
to volunteers, contractors, employees, business partners) via APIs or direct database access
requires Ungerboeck's license.
4.2 Purchase of Services as Currently Configured.
You agree that your purchase of the Services is not contingent on the delivery of any future
functionality or features, nor is it dependent on any public statements made by USI regarding future
functionality or features. However, the Services may be upgraded from time to time. Should USI
make new functionalities and modules available for sale to Customer, USI will make them available
to Customer for purchase.
5. USE OF THE SERVICES
5.1 USI's Responsibilities.
USI shall:
(i) Provide support for Services to the Customer for all licensed users per the
Ungerboeck Service Level Agreement on the Support website at
https://ungerboeck.com/documents/terms/sla ;
(ii) Use commercially reasonable efforts to make the Services available 24 hours a
day, 7 days a week, except for:
a) Planned downtime (in which case USI shall give at least 48 hours' notice
via the Services or email. USI shall schedule planned downtime to the
extent practicable during the weekend hours (between 10:00 p.m. Friday
and 5:00 a.m. Monday, U.S. Central Time); and
b) Any unavailability caused by circumstances beyond USI's reasonable
control, including without limitation, events of force majeure, malicious
attacks on the system, issues associated with the Customer's computing
devices or local area networks, USI's ability to deliver Services because
of Customer's acts or omissions, acts of God, acts of government, floods,
fires, earthquakes, civil unrest, acts of terror, strikes or other labor
problems (other than those involving USI's employees), Internet service
provider connection failures or delays; and
(iii) Provide the Services in accordance with applicable laws and government
regulations.
5.2 Customer Data.
USI shall maintain commercially reasonable administrative, physical, and technical safeguards for
protection of the security, confidentiality and integrity of your data. Subject to the limited rights
granted by you, the Customer pursuant to these Terms, we acquire no right, title or interest from
you or your licensors under these Terms in or to your data, including any intellectual property rights
therein. USI may de- identify and aggregate Customer data, provided that USI de-identifies such
data in compliance with applicable law. For the avoidance of doubt, de-identified information does
not constitute Customer data. USI shall perform a daily backup of all of your data, but in no event
shall USI be liable to you or any third party for loss, destruction, or corruption of your data other
than USI's costs for reloading the backup. You agree and acknowledge that you, the Customer,
are in a better position to foresee and evaluate any potential damage or loss you may suffer in
connection with a loss of your data, and that the fees payable under these Terms have been
calculated by taking into account the liability limitation contained in this section.
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If during the provision of the Services USI has access to personal data of the EU Customer and
Users, USI as data processor will always comply with applicable data protection laws, in particular
process such personal data solely for the purpose of providing the Services,to oblige its employees
to maintain personal data confidential and to instruct them about the individual privacy provisions
to adhere to. USI shall maintain the technical and organizational measures required under the
General Data Protection Regulation (Regulation (EU) 2016/679) ("GDPR") for protection of the
security, confidentiality and integrity of the Customer's personal data. USI in its role as data
processor acquires no right, title or interest from you or your licensors under these Terms in or to
your data, including any Intellectual property rights therein. The Parties undertake at all times to
comply with the applicable data protection laws and regulations, in particular the GDPR with regard
to the collection,storage, use and disclosure of any personal or sensitive information and data they
collect, use or otherwise access in connection with the Services and both parties shall oblige their
personnel to observe those data secrecy requirements pursuant to the relevant applicable laws
and regulations. Legitimate data protection obligations of the Parties pertaining to possible
commissioned data processing are set forth in the data processing agreement in accordance with
Art. 28 GDPR between Customer(data controller)and USI (data processor),which must be signed
by both parties and shall be attached to the applicable Order Form and which forms an integral part
of the Agreement. The statutory and applicable data protection provisions, in particular Art. 82
GDPR, apply in the event of compensation of liability claims.
USI shall not:
(i) Modify your data;
(ii) Disclose your data except as compelled by law in accordance with Section 9.3
(Compelled Disclosure)or as expressly permitted in writing by you; or
(iii) Access your data, except in order to provide the Services and prevent or address
service or technical problems, or at your request in connection with customer
support matters.
5.3 Customer's Responsibilities.
You, the Customer, shall:
(i) Be responsible for the Users' compliance with these Terms and for any activities
that occur under Users' accounts;
a) Be responsible for the accuracy, quality and legality of your data and of
the means by which you acquired your data;
b) Use commercially reasonable efforts to prevent unauthorized access to or
use of the Services and notify USI promptly of any unauthorized access or
use. Furthermore, in the event that Customer discovers any such
unauthorized use or access, Customer shall immediately stop the
unauthorized use or access. Customer acknowledges and agrees that in
such cases, USI may seek injunctive relief and any other remedies that
may be available to it at law or in equity;
c) Use the Services only in accordance with these Terms and applicable
state laws, ordinances, and federal laws and regulations;
(ii) Work cooperatively with USI in receiving, approving, and accepting the Services.
Customer shall access and use the Services with secured environment as per the
guidelines provided by USI.
(iii) Be on a supported version of Ungerboeck Software and plan upgrades
accordingly. Failure to do so may result in USI upgrading the Customer
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environment to a supported version as soon as their existing version ceases to be
supported; and
(iv) Implement, maintain, and update all necessary and proper procedures and
software for safeguarding against computer infection, viruses, worms, Trojan
horses, and other code that manifest contaminating or destructive properties.
(v) Comply with USI usage policy at
httos://ungerboeck.com/documents/terms/UsagePolicv
You, the Customer, shall not:
(i) Make the Services available to anyone other than authorized Users;
(ii) Permit any third party to access the Services except as permitted by these Terms
or in an Order Form;
(iii) Customer shall not upload, post, reproduce, or distribute any data or material
protected by privacy rights without first obtaining the permission of the owner of
such rights;
(iv) Sell, resell, rent or lease the Services;
(v) Modify, alter, or create derivative works based on the Services except as
authorized by these Terms;
(vi) Copy, frame or mirror any part or content of the Services, other than copying or
framing on your own intranets or otherwise for your own internal business
purposes;
(vii) Reverse engineer the Services except to the extent permitted by law;
(viii) Access the Services in order to:
a) Build a competitive product or service, or
b) Copy any features, functions or graphics of the Services;
(ix) Use the Services to store or transmit infringing, libelous, or otherwise unlawful or
tortious material, or to store or transmit material in violation of third-party privacy
rights;
(x) Use the Services to store or transmit Malicious Code;
(xi) Interfere with or disrupt the integrity or performance of the Services or third-party
data contained therein;
(xii) Attempt to gain unauthorized access to the Services or their related systems or
networks;
(xiii) Use the services in violation of any applicable state laws, ordinances, and federal
laws and regulations; and
(xiv) Unreasonably withhold or delay any consent, approval or acceptance required by
the Order Form.
5.4 Usage Limitations and Audits.
USI reserves the right to limit the usage of API if the Customer's interfaces or programs negatively
impacts the performance or Hosting Services.
Upon request by USI the Customer undertakes to allow USI to audit (inspections of compliance
with the rights of usage for the provide Services) whether the Customer's use of the Services is
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consistent with the rights granted to the Customer under Section 4.1, provided there is a legitimate
interest. A legitimate interest exists in the event of a reasonable suspicion that the Customer has
exceeded its usage right. The Customer has to be notified by USI in writing prior to the audit. The
date of the audit and the nature of the execution must be likewise coordinated between the Parties
in advance.The Customer undertakes to fully cooperate with USI during the audit.
5.5 Performance and Usage Data.
The Customer acknowledges that the service transmits usage data to Ungerboeck's system. This
data is used for licensing, monitoring, and statistical purposes. The Customer shall indemnify USI
against third-party claims related to or arising out of Customer's failure to comply with USI's usage
policy. USI's system will report usage data to USI, and USI reserves the right, based upon those
reports or other profile data, to offer to you and your Users upgrades and additional services via
email or other direct communication. Neither you nor your Users are obligated to purchase any
such upgrades or additional services.
6. NON-UNGERBOECK APPLICATIONS
6.1 Acquisition of Non-Ungerboeck Products and Services.
USI or third parties may from time to time make available to you third-party products or services,
including but not limited to Non-Ungerboeck Applications and implementation, customization and
other consulting services. Any acquisition by you of such Non-Ungerboeck Applications, and any
exchange of data between you and any Non-Ungerboeck provider, is solely between you and the
applicable Non-Ungerboeck provider. USI does not warrant or support Non-Ungerboeck products
or services, whether or not they are designated by USI as "certified" or otherwise, except as
specified in an Order Form. No purchase of Non-Ungerboeck Applications is required to use the
Services. If you install or enable Non-Ungerboeck Applications for use with the Services, you
acknowledge that USI may allow providers of those Non-Ungerboeck Applications to access your
data as required for the interoperation of such Non-Ungerboeck Applications with the Services. USI
shall not be responsible for any disclosure, modification or deletion of your data resulting from any
such access by Non-Ungerboeck Application providers. If the third-party provider of any such Non-
Ungerboeck Application ceases to make the Non-Ungerboeck Application available for
interoperation with the corresponding Service features on reasonable terms, USI may cease
providing such Service features without providing any refund, credit, or other compensation to the
Customer.
7. FEES AND PAYMENT FOR SERVICES
7.1 Fees.
You shall pay all fees specified in the applicable Order Form(s). Except as otherwise specified:
(i) Fees are based on Services purchased and not actual usage;
(ii) Payment obligations are non-cancellable,and fees paid are non-refundable except
as expressly provided under the Termination for Cause section; and
(iii) The number of Users for whom the Services are purchased cannot be decreased
during the relevant term stated on the Order Form(s).
7.2 Invoicing and Payment.
Unless otherwise stated in your Order Form(s), Customer shall make timely payment of all
undisputed invoiced charges within thirty (30) days of the invoice date. You are responsible for
providing complete and accurate billing and contact information to USI and for notifying USI of any
changes to such information.
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7.3 Overdue Charges and Suspension of Service.
If any payments are not received by the due date, (a) the unpaid balance may accrue interest at
the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law,
whichever is higher, from the date such payment was due until the date paid; and/or (b)We may
condition future Service renewals and Order Form(s) on payment terms shorter than those
specified in Section 7.2 (Invoicing and Payment). If any amount owed by you pursuant to the
applicable Order Form or any other agreement for USI services is thirty(30)or more days overdue
we may,without limiting our other rights and remedies,accelerate your unpaid fee obligations under
this Agreement and any other such agreements so that all of your fee obligations become
immediately due and payable. We may suspend all services to you until such amounts are paid in
full. We will give you at least 7 days' prior notice that your account is overdue before suspending
services.
7.4 Payment Disputes.
USI shall not exercise its rights under Section 7.3 (Overdue Charges and Suspension of Service)
if such charges are the subject of a good faith dispute which you are cooperating diligently to
resolve with USI.
7.5 Taxes.
Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental
assessments of any nature, including but not limited to value-added, sales, use or withholding
taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively,
"Taxes"). You are responsible for paying all Taxes associated with your purchases of the Services.
If we have the legal obligation to pay or collect Taxes for which you are responsible under this
paragraph, the appropriate amount shall be invoiced to and paid by you, unless you have provided
USI with a valid tax exemption certificate authorized by the appropriate taxing authority.
8. OWNERSHIP, PROPRIETARY RIGHTS AND USE OF DATA
8.1 Reservation of Rights—Services.
Subject to the limited rights expressly granted according to these Terms, USI reserves all rights,
title and interest in and to the Services and related software, including all related intellectual
property rights.
8.2 Reservation of Rights— Publicity.
USI may include Customer's name, logos and trademarks in its customer lists and on its
presentations, websites, press releases, and marketing materials. Upon signing this agreement,
USI may issue a press release announcing the relationship and the manner in which Customer will
use the Service. Each party may require the other to withdraw any use of the other's name, logos,
and trademarks if the party reasonably considers that such use is derogatory, defamatory,
detrimental or in any way damages the party's business or reputation.
8.3 Enhancements.
USI reserves the right to use and incorporate into the Services any suggestions, enhancement
requests, recommendations or other feedback provided by you, including your Users, relating to
the operation of the Services. Any software modifications or enhancements performed by USI,
whether paid for by you or not, remain the property of USI and may at our sole discretion be
incorporated into or withheld from the software generally made available to USI's customers.
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9. CONFIDENTIALITY
9.1 Definition of Confidential Information.
(i) As used in these Terms, "Confidential Information" includes all confidential
information disclosed by a party("Disclosing Party")to the other party("Receiving
Party"), 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. Your Confidential Information
shall include your data; USI's Confidential Information shall include the Services;
and Confidential Information of each party shall include any and all Order Form(s),
as well as business and marketing plans, technology and technical information,
product plans and designs, business processes and other proprietary information
disclosed by either party.
(ii) Confidential Information (other than your data) shall not include any information
that:
a) Is or becomes generally known to the public without breach of any
obligation owed to the Disclosing Party;
b) Was known to the Receiving Party prior to its disclosure by the Disclosing
Party without breach of any obligation owed to the Disclosing Party;
c) Was received from a third party without breach of any obligation owed to
the Disclosing Party; or
d) Was independently developed by the Receiving Party.
9.2 Protection of Confidential Information.
The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of
its own confidential information of like kind (but in no event less than reasonable care)and hereby
agrees:
(i) To keep strictly confidential and take reasonable precautions to protect against the
unauthorized access, use or disclosure of all Confidential Information;
(ii) Electronic data format confidential information shall be maintained and secured
using security measures that meet information security controls standard;
(iii) Not to use any Confidential Information of the Disclosing Party for any purpose
outside the scope of these Terms; and
(iv) To limit access to Confidential Information of the Disclosing Party to those of its
and its Affiliates employees, contractors and agents who need such access for
purposes consistent with these Terms and who have signed confidentiality(and or
other nondisclosure) agreement(s)with the Receiving Party, except as otherwise
authorized by the Disclosing Party in writing.
9.3 Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled
by law to do so, provided the Receiving Party promptly gives the Disclosing Party prior notice of
such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the
Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving
Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a
civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting
the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of
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compiling and providing secure access to such Confidential Information. The Parties shall
cooperate in seeking reasonable protective arrangements before the Confidential Information is
produced and at all times (to the extent legally permitted), the Receiving Party agrees to furnish
only that portion of the Confidential Information which is legally required in the reasonable opinion
of its counsel (after consultation with the Disclosing Party's counsel).
10. WARRANTIES AND DISCLAIMERS
10.1 Our Warranties.
EXCEPT AS EXPRESSLY PROVIDED, THE SERVICES ARE PROVIDED "AS-IS" WITHOUT
WARRANTY OF ANY KIND. USI DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY,
CORRESPONDENCE TO DESCRIPTION, OR FITNESS FOR A PARTICULAR PURPOSE. USI
DOES NOT REPRESENT OR WARRANT BUT WILL MAKE COMMERCIALLY REASONABLE
EFFORTS TO ENSURE THAT THE SERVICES ARE UNINTERRUPTED, CRUCIAL DEFECTS
ARE CORRECTED, AND THE SERVERS USED FOR THE SERVICES ARE REGULARLY
UPDATED AND MAINTAINED.
10.2 Your Warranties.
You warrant that you have validly accepted these Terms & Conditions and any obligations
contained in the applicable Order Form(s)and have the legal authority to do so.
10.3 Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED, NEITHER PARTY MAKES ANY WARRANTIES OF ANY
KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO
THE WARRANTIES OUTLINED IN SECTION 10.1 ABOVE, TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW.
10.4 Services in Development.
SERVICES IN DEVELOPMENT ("Services in Development') ARE NOT CONSIDERED AS
"SERVICES "UNDER THESE TERMS & CONDITIONS AND ARE PROVIDED "AS IS" WITH NO
EXPRESS OR IMPLIED WARRANTY. In addition, from time to time we may invite you to try USI
products or Services in Development that are not generally available to Customers.You may accept
or decline any such trial in your sole discretion. Any Services in Development may contain bugs or
errors and Customer acknowledges that USI has no obligation to make any Services in
Development generally available to its customers.
11. INDEMNIFICATION
11.1 Indemnification by USI.
We shall defend you against any claim, demand, suit, or proceeding made or brought against you
by a third party alleging that the use of the Services infringes or misappropriates the intellectual
property rights of said third party, and shall indemnify you for any damages, attorney's fees and
costs finally awarded against you as a result of, and for amounts paid by you under a court-
approved settlement of such claim, provided that you: (a) promptly give USI written notice of the
claim; (b)allow USI sole control of the defense and settlement of the claim(provided that USI may
not settle any claim unless the settlement unconditionally releases you of all liability); and (c)
provide to USI all reasonable assistance, at USI's expense. In the event of a such claim, or if we
reasonably believe the Services may infringe or misappropriate,we may in our sole discretion and
at no cost to you: (a) modify the Services so that they no longer infringe or misappropriate, (b)
obtain a license for your continued use of the Services in accordance with these Terms, or (c)
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terminate your use of such Services upon thirty (30) days' written notice and refund to you any
prepaid fees covering the remainder of the term.
11.2 Indemnification by the Customer.
You shall defend USI against any claim, demand, suit or proceeding made or brought against USI
by a third party alleging that your data or your use of the Services infringes or misappropriates the
intellectual property rights of a third party or violates applicable law, and shall indemnify USI for any
damages, attorney's fees and costs finally awarded against USI as a result of, or for any amounts
paid by USI under a court-approved settlement of such claim, provided that we (a) promptly give
you written notice of the claim; (b)allow your sole control of the defense and settlement of the claim
(provided that you may not settle any claim unless the settlement unconditionally releases USI from
all liability); and (c) provide to you all reasonable assistance, at your expense. Without limiting or
otherwise abrogating Customer's other obligations stated elsewhere in the Agreement or the Order
Form, Customer at its own expense shall defend, indemnify, and hold USI harmless from and
against any and all damage, loss, expense, claim, lawsuit, judgment, and / or other liability
(including without limitation attorney's fees or court costs) arising from failure of Customer, its
agents, employees, contractors, or licensees,to protect confidential and/or personal information of
third parties. USI shall have the right but not the obligation to participate in defending against such
claim.
11.3 Failure to Notify Remedy.
If either party fails to notify the other party of indemnification proceedings, then the unnotified party
will be relieved of its obligations under this Section, to the extent it was prejudiced by the party's
failure to notify.
11.4 Exclusive Remedy.
Section 11 (Indemnification) states the indemnifying party's sole liability to, and the indemnified
party's exclusive remedy against, the other party for any type of claim described in this Section.
12. LIMITATION OF LIABILITY
12.1 Limitation of Liability.
NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY INCIDENT ARISING OUT OF OR
RELATED TO USE OF THE SERVICES (WHETHER IN CONTRACT OR TORT OR UNDER ANY
OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY YOU ACCORDING
TO THESE TERMS AND THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS
PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY'S
AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO USE OF THE SERVICES
(WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY)
EXCEED THE TOTAL AMOUNT PAID BY YOU PURSUANT TO THE APPLICABLE ORDER
FORM. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER
SECTION 6 (FEES AND PAYMENT FOR SERVICES). NEITHER PARTY WILL BE LIABLE FOR
BREACH-OF-CONTRACT DAMAGES SUFFERED BY THE OTHER PARTY THAT ARE
REMOTE, SPECULATIVE, OR THAT COULD NOT HAVE REASONABLY BEEN FORESEEN ON
ENTRY INTO THIS AGREEMENT.
12.2 Exclusion of Consequential and Related Damages.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY
LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN
CONTRACT,TORT OR UNDER ANY OTHER THEORY OF LIABILITY,AND WHETHER OR NOT
THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING,
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BUT NOT LIMITED TO: (A)ANY DAMAGES CAUSED BY YOUR FAILURE OR THAT OF YOUR
USERS, CLIENTS, (B) ANY CLAIMS OR DEMANDS OF THIRD PARTIES (EXCEPT AS
PROVIDED IN SECTION 11); OR (C) ANY LOST PROFITS, LOSS OF BUSINESS, BUSINESS
INTERRUPTION, COST OF COVER, LOSS OF USE, LOSS OF DATA, LOST SAVINGS OR
OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE
DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING,
PERFORMANCE OR USE OF THE SERVICES WHETHER ALLEGED AS A BREACH OF
CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE.
THIS LIMITATION APPLIES TO USI AND ANY PERSON OR ENTITY INVOLVED IN THE
CREATION, MANUFACTURE OR DISTRIBUTION OF ANY SOFTWARE, SERVICES OR OTHER
MATERIALS PURSUANT TO THE PROVISION OF THE SERVICES.
THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY
APPLICABLE LAW.
13. TERM OF SERVICE AND TERMINATION
13.1 Service Term.
The application of these Terms commences on the date specified in the applicable Order Form and
continues for the term stated therein or until Termination pursuant to this Section.
13.2 User Access.
Access for Users purchased by you commences on the start date specified in the applicable Order
Form and continues for the term specified therein. Except as otherwise specified in the applicable
Order Form, all Services shall automatically renew for additional periods equal to the expiring term
or one year(whichever is shorter), unless either party gives the other notice of non-renewal at least
thirty(30)days before the end of the relevant term. Excluding one-time discounts and promotional
pricing, the annual price increase shall not exceed seven percent.
13.3 Termination for Cause.
Either party may terminate the Agreement for cause: (i) upon thirty(30)days' prior written notice to
the other party of a material breach if such breach remains uncured at the expiration of such period,
or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding
relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any
termination for cause by you, the Customer, USI shall refund to you any prepaid fees covering the
remainder of the Service Term or Renewal Term after the effective date of termination. Upon any
termination for cause by USI, you shall pay any unpaid fees covering the remainder of the Service
Term or Renewal Term of any Order Form(s) after the effective date of termination. In no event
shall any termination relieve you of the obligation to pay any fees payable to USI for any period
prior to the effective date of termination.
13.4 Return of Your Data.
Upon written request by you made within thirty (30) days after the effective date of termination of
the Services and at your cost, USI will return your data in the format used by USI. After such 30-
day period, USI shall have no obligation to maintain or provide any of your data and shall thereafter,
unless legally prohibited, delete all of your data in USI's systems or otherwise in USI's possession
or under USI's control.
13.5 Surviving Provisions.
The Parties' rights and obligations which, by their nature, would continue beyond the termination
of this Agreement shall survive such termination, including the rights and obligations created by the
following clauses: Fees and Payment for Purchased Services, Ownership, Proprietary Rights and
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Use of Data, Confidentiality, Disclaimer, Indemnification, Limitation of Liability, Refund or Payment
upon Termination, Return of Your Data, Who You Are Contracting With, Notices, Governing Law
and Jurisdiction, and General Provisions.
14. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND
JURISDICTION
14.1 Who You are Contracting With.
Who you are contracting with under these Terms, who you should direct notices to, what law will
apply in any lawsuit arising out of or in connection with use of the Services, and which courts can
adjudicate any such lawsuit, depend on where you are domiciled.
If you are You are Notices should be The governing The courts having
domiciled in: contracting with: sent to: law is: exclusive
jurisdiction are:
100 Ungerboeck
The United States, Ungerboeck Park
Canada, Mexico, or Systems
O'Fallon, MO Missouri state law
63368 and applicable St. Charles County,
a country in Central International, Inc., Attn: General United States Missouri, USA
or South America A Missouri Counsel federal law
or the Caribbean Corporation Fax: +1-636-300-
5607
In Asia or the Level 1, Suite 7
Pacific Region Ungerboeck 924 Gympie Road Brisbane,
(other than Systems Chermside, QLD Australian law Queensland,
Mainland China, International Pty 4032 Australia
Hong Kong, Macau, Ltd.
and Taiwan) Australia
Unit 814-817, 8/F,
The Place
Guangzhou No. 620 Xin Gang
China Ungerboeck East Road, Haizhu P.R. China law P.R. China
Software Limited District
Guangzhou,
510030 China
1501-08
Millennium City 5
Hong Kong, Macau Ungerboeck 418 Kwun Tong
or Taiwan Systems Road Hong Kong law Hong Kong
International Ltd Kwun Tong,
Kowloon, Hong
Kong
A country in Ungerboeck Kaiserstrasse 72
Europe, the Middle Systems 76133 Karlsruhe German law Germany
East Region or International GmBH Germany
Africa
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14.2 Agreement to Governing Law and Jurisdiction.
You and USI agree to the designated governing law above without regard to choice or conflicts of
law rules, and to the exclusive jurisdiction of the applicable courts.
15. GENERAL PROVISIONS
15.1 Export Compliance.
The Services, and any derivative content and technology we make available to you may be subject
to export laws and regulations of the United States and other jurisdictions. Each party represents
that it is not named on any U.S. government denied party list. You shall not permit Users to access
or use any Service or related content in a U.S. embargoed country (currently Cuba, Iran, North
Korea, Sudan or Syria)Orin violation of any U.S. export law or regulation.
15.2 Assignment.
Neither party may assign any of its rights or obligations under this Agreement,whether by operation
of law or otherwise,without the other party's prior written consent(not to be unreasonably withheld);
provided, however, either party may assign this Agreement in its entirety (including all Order
Forms), without the other party's consent to its Affiliate or in connection with a merger, acquisition,
corporate reorganization or sale of all or substantially all of its assets. Notwithstanding the
foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of
control in favor of, a direct competitor of the other party, then such other party may terminate the
Agreement upon written notice. In the event of such termination, we will refund to you any prepaid
fees covering the remainder of the term of the Agreement or any other agreements with USI.
Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their
respective successors and permitted assigns.
15.3 Relationship of the Parties.
You agree that USI is an independent contractor. Neither party will have the authority to, and will
not, act as agent for or on behalf of the other party or represent or bind the other party in any
manner. No partnership, franchise, joint venture, agency, fiduciary or employment relationship
between you and USI is created by virtue of this these Terms.
15.4 Third-Party Beneficiaries.
USI's licensors shall have the benefit of the protections and rights reserved herein with respect to
the Services and related content. No other third-party beneficiaries are contemplated under this
Agreement, and therefore none exist.
15.5 Force Majeure.
USI will not be deemed in default of any provision of these Terms or otherwise be held liable for
any delay in or failure of its performance under these Terms if such delay or failure arises due to
any event beyond its reasonable control, including without limitation acts of God, malicious or
criminal acts, acts of the common enemy, weather conditions, earthquakes, floods, fires, labor
disputes, changes in law, regulation or government policy,war,epidemics, riots,failures,difficulties
or delays in transportation or communications,acts or omissions of vendors or suppliers,equipment
failures, or any act or failure to act by the Customer, its employees, agents or contractors. The
parties will promptly inform and consult with each other as to any event which in their judgment,
may or could be the cause of a substantial delay in performance under these Terms. USI is not
liable for excusable delay.
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15.6 No Waiver.
No failure, neglect or delay by you or USI in exercising any right under these Terms shall constitute
a waiver of that right.A waiver or extension is only effective if it is in writing and signed by the party
granting it.
15.7 Severability.
In the event that a court of competent jurisdiction holds that a particular provision or requirement of
these Terms is in violation of any applicable law, each such provision or requirement shall be
enforced only to the extent it is not in violation of such law or is not otherwise unenforceable and
all other provisions and requirements contained in these Terms shall remain in full force and effect.
15.8 Attorney's Fees.
You agree to pay any and all reasonable attorney's fees and/or collection costs incurred by USI in
order to collect any fees or charges due to USI following your breach of Section 7.2 (Invoicing and
Payment).
16. SIGNATURES OF THE PARTIES
This agreement has been executed by the following Parties.
City of Fort Worth Ungerboeck Systems International, Inc.
Valerie Washington(Nov 2,202010:33 CST)
Authorized Signature Authorized Signature
Valerie Washington Manish Chandak
Typed or Printed Name Typed or Printed Name
Assistant City Manager President&CEO
Title Title
Nov 2, 2020 10/20/2020
Date Date
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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ACCEPTED AND AGREED:
CITY.
CITY OF FORT WORTH CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
164/Wn.--3 of this contract,including ensuring all
By: Valerie Washington(Nov 2,2020 10:33 CST) performance and reporting requirements.
Name: Valerie Washington
Title: Assistant City Manager
Nov 2 2020 Qgfog
Date: By: Leah M.H (Oct 20,202012:32 CDT)
Name: Leah Huff
APPROVAL RECOMMENDED: Title: Sr. IT Solutions Manager
APPROVED AS TO FORM AND LEGALITY:
By:
Name: Kevin Gunn -18 knm
Title: Director,IT Solutions ao4oan By: JB Strong(Nov ,202015:21 CST)
A'04 FOR),
pFooaooa.. dd Name: John B. Strong
ATTEST: P °�9�� Title: Assistant City Attorney
°oOo o o_�
°0000OpppO pod CONTRACT AUTHORIZATION:
' 0 aan nexp5app M&C: NA
By: "o Date Approved:
Name: Mary J.Kayser
Title: City Secretary Form 1295 Certification No.:
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX