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PRODUCT AND SUPPORT SERVICES AGREEMENT
FOR
CITY OF FORT WORTH, TX
(Project No. 202-0001)
This Product and Support Services Agreement (the "AgreemenY') is made and entered
into as of June 10, 2013 (the "Effective Date") by and between Socialmentum, LLC, dlb/a
MindMixer, located at 1111 N. 13th Street, Suite 101, Omaha, NE 68102 (the "Consultant" or
"MindMixer") and City of Fort Worth, TX, located at 1000 Throckmorton Street, Fort Worth, TX
76102 (the "Client"),
WHEREAS, Consultant is in the business of a web application capable of hosting online
engagement activities and related projects promoting an exchange of information and ideas for
use by governmental and commercial entities;
WHEREAS, Client desires to engage Consultant to provide and maintain a website (the
"Site") for use in connection with the Online Community Engagement Project as identified by
Client (the "ProjecY'), and to perform certain support services related thereto, and Consultant
desires to accept said engagement; and
WHEREAS, the parties intend this Agreement to evidence their understanding with
respect to Client's engagement of Consultant to develop the Site and perForm services related
thereto.
NOW, THEREFORE, in consideration of the foregoing recitals and mutual covenants
contained herein, the parties agree as follows:
SCOPE OF ENGAGEMENT.
A. Web Application. Consultant shall provide and maintain the Site for Client
and perform and provide certain technical support related thereto in
accordance with the terms and conditions of this Agreement and the
Statement of Work that is attached hereto as Exhibit A and incorporated
herein by reference ("SOW") (the services described under "Site
Development Services", the "Development Services").
2. FEE PAYMENT AND TIMING.
A. Fees. In consideration of ConsultanYs provision of the product and
performance of the Support Services, hereunder, Client shall pay
Consultant fees in accordance with the payment terms and conditions
specified in this Agreement and on Exhibit B attached hereto (collectively,
the "Fees").
B. Late Pavment. Except with respect to amounts disputed in good faith, all
amounts due under this Agreement, if not paid within 30 days of the due
date, shall be considered late and shall accrue interest at the rate of one
and one-half percent per month or the highest amount allowed by
applicable law, whichever is less.
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C. Client's Failure to Pay. Client's incurring of a late payment (as
determined in accordance with Section 2(B)) shall be considered a
material breach of this Agreement. As such, in the event payment is not
made in full within 15 days of notice of breach from Consultant,
Consultant may (i) refuse to deliver the reports, materials, and other
deliverables that it would otherwise be obligated to deliver hereunder, (ii)
cease pertormance of any Services, (iii) issue a notice of non-payment to
Client, which, if not satisfied within 15 days after the receipt thereof, shall
constitute grounds for Consultant to terminate this Agreement or the
SOW applicable to the Services. These rights are not exclusive and
Consultant reserves its right to seek any other rights or remedies
provided in law or equity.
D. Taxes. All amounts payabie to Consultant as specified herein are in
United States dollars. Client is a tax exempt entity and shall not be
responsible for any taxes under this Agreement.
3. DELIVERABLES.
Electronic Database. Client, via the data dashboard, wili have access to (the
"Database") the fallowing items: (i) site analytics; (ii) summary of
demographic information related to the Site's user base; (iii) user names
and associated electronic mail addresses; (iv) aggregate reports
containing information about the age, location and activity of the Site's
users; and (v) all user-generated content on the Site.
4. CONSULTANT OB�IGATIONS + SERVICE LEVEL AGREEMENT.
A. General.
(i) All Services shall be performed by qualified Consultant personnel
in a professianal and workmanlike manner, and in accordance
with applicable industry standards. Consultant shall have sole
discretion regarding the selection of the personnel to render the
Services.
(ii) Consultant will establish working hours for its personnel, and may,
at its sole discretion, use the resources and materials it deems
necessary to perform the Services. Consultant shall, within the
specifications set forth in any applicable Schedule or SOW,
determine the method, details and means of performing the
Services.
B. Support Services.
(i) The Consultant's web platform will be operational and available to
Client at least 99.5% of the time in any calendar month (the
"MindMixer Application SLA"). If MindMixer does nnt meet the
MindMixer Application SLA, Client will be eligible to receive the
Support Service Credits described below:
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Uptime Percentage Support Service Credit (Days)
< 99.5% - >= 99.0% 3
< 99.0% - >= 95.0% 7
< 95.0% 15
(ii) Service Credit Request. In order to receive any of the Support
Service Credits described above, Client must notify MindMixer
within 30 days from the time Client becomes eligible to receive a
Service Credit. Failure to comply with this requirement will forfeit
Client's right to receive a Service Credit.
(iii) Maximum Service Credit. The aggregate maximum number of
Support Service Credits to be issued by MindMixer to Client for alt
Downtime that occurs in a single calendar month shall not exceed
fifteen days of Service added to the end of Client's term for the
Service. Support Service Credits may not be exchanged for, or
converted to, monetary amounts.
(iv) Application SLA Exclusions. The MindMixer Application SLA
does not apply to any services that expressly exclude this
MindMixer Application SLA or any performance issues: (i) caused
by factors described in the "Force Majeure" section of the
Agreement; or (ii) that resulted from Client's equipment or third
party equipment, or both (not within the primary control of
MindMixer).
(v) Records Retention/Right to Audit. Consultant will maintain all
Site records for 7 years from the effective termination date. Any
request for records beyond the termination date must be made in
writing 30 days prior to desired record delivery date. Consultant
agrees that for a three (3) year period following termation of this
Agreement, the Client shall have access to and the right to
examine at reasonable times any directly pertinent books,
documents, papers and records, in hard copy or electronic form,
of the Consultant involving transactions relating to this Agreement
at no additional cost to the Client; however, Client shall be
responsible for its own expenses related to any such audit.
Consultant agrees that the Client shall have access during normal
working hours to all necessary Consultant facilities and shall be
provided adequate and appropriate work space, or Consultant
shall deliver to Client all documents requested by Client in order to
conduct audits in compliance with the provisions of this section.
Client shall give Consultant reasonable advance notice of
intended audits.
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5. CLIENT OBLIGATIONS.
Ciient and Consultant shall be responsible for compliance with all laws and
governmentai regulations affecting delivery and use of the Services and the Site,
including, without limitation, applicable open and pubiic records laws, and
Consultant shall not have any responsibility to advise Client of such laws or
regulations.
6. TERM AND TERMINATION.
A. Term. This Agreement shall commence on the Effective Date and
terminate 12 months thereafter ("Initiai Term"), unless otherwise
terminated or extended in accordance with the provisions of this
Agreement (the Initial Term and any extension(s) thereof are collectively
referred to as the "Term"). This Agreement may be extended for one or
more additional periods, as the parties may mutually agree in writing.
B. Eariv Termination. Either party may terminate this Agreement or any
applicable SOW at any time and for any reason by providing written
notice of termination to the other party 30 days prior to the effective date
of such termination, or may terminate this Agreement immediately without
prior notice if the other party has materially breached this Agreement. In
the event of termination, Client must pay Consultant all Fees associated
with Services rendered as of the effective date of termination, including
reimbursable expenses. In addition, Client acknowledges that the
amount of any applicable recurring monthly Fee is based on Client's
agreement to pay the fee for the entire Term, and thus, in the event
Consultant terminates this Agreement due to ClienYs material breach of
this Agreement, Client agrees that aii monthly recurring Fees due
hereunder for the remainder of the Term shall be due within 15 days
following the effective date for such termination. Unless otherwise
specified in this Agreement, Client will not receive any refund for
payments already made by Client as of the date of termination.
C. Non-appropriation of Funds. Notwithstanding the foregoing, in the event
no funds or insufficient funds are appropriated by Client in any fiscal
period for any payments due hereunder, Client will notify Consultant of
such occurrence and this Agreement shall terminate on the last day of the
fiscal period for which appropriations were received without penalty or
expense to Client of any kind whatsoever, except as to the portions of the
payments herein agreed upon for which funds have been appropriated.
Client's termination pursuant to this provision shall not be considered a
material breach of this Agreement.
D. Effect of Termination. Upon termination for any reason, Client agrees
that: (a) it will immediately cease using the terminated Services and the
Site, if applicable; and (b) Consultant may take steps to change, remove
or otherwise block Client access to the Site or any Services to which
Client had access. Consultant shall return all Client provided information
or materials and discontinue use of all Client provided information or
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materials within 10 days of such termation. Unless otherwise agreed
upon, termination of any applicabie SOW shail not constitute a
termination of any other applicable SOW or of this Agreement. However,
the termination of this Agreement shall terminate all SOWs otherwise
then in effect.
7. OWNERSHIP AND USE OF THE MATERIALS, USER CONTENT.
A. Creative Materials. The parties acknowledge and agree that an integral
part af the Agreement is the MindMixer Web Appiication, which wili
include the development of certain information, content, text, graphics,
photos, videos, domain names, saftware and other items, as well as their
selection and arrangement (collectively, the "MindMixer Creative
Materials"). Such Creative Materials are protected by copyrights,
trademarks, patents, trade secrets and other intellectuai property and
proprietary rights, and except as otherwise provided herein, Consultant
shall be considered the author of such Creative Materials and retains all
right, title and interest in and to such Creative Materials. Consultant
hereby grants Client a limited, non-exclusive right to use the Creative
Materials solely in connection with this Agreement, the Project and the
rights and obligations granted hereunder. Except as otherwise provided
herein, any rights granted to Client to use the Creative Materiats shall
terminate upon termination of this Agreement. Nothing herein sl�all
transfer from Clienf to Consultanf ai7y ownership rights in materials
owned by Client (e.g., logos) which might be used with the Creative
Materials or on the Site, including, hut not limited to copyrighfed,
trademarked, trade namecl, or similarly p�otected intellecfual maferials
owned by Client.
B. User Content. The parties acknowledge and agree that the user content
generated on the Site is not owned by either Consultant or Client, but can
be used by either party for promotional purposes or any other applicable
purpose during and after the Term, or as otherwise provided herein.
Consultant acknowledges that the Client can and will retain, throughout
th� Term and thereafter, the right to use any user content and the
Deliverables for any and all purposes related to the ger�eral business of
the Client, future client projects, and any and all promotional activities
related to the Site. Client will be provided with an electronic copy of all
user content at the completion of the Term.
8. INDEMNITY; LIMITATION OF �IABILITY; DISCLAIMER OF WARRANTIES
A. Consultant agrees, at its own expense, to indemnify, defend and hold
harmless Client, its officers, directors, agents, employees, successors
and assigns, against any and all losses, costs, liabilities, damages and/or
expenses brought against Client by any third pa�ty to the extent based on
or arising from the Project, the Services or the Site ("Third Party Claims"),
excluding Third Party Claims caused by ClienYs gross negligence or
willful misconduct.
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B. Consuitant agrees to defend, settle, or pay, at its own cost and expense,
any ciaim or action against Client for infririgement of any patent,
copyright, trade secret, or similar property right arising from Client's use
of the Creative Materials in accordance with this Agreement. Consuitant
shall have the sole right to conduct the defense of any such ciaim or
action and ail negotiations for its settlement or compromise and to settle
or compromise any such claim, however, Client shail be ailowed to fully
coordinate and cooperate with Consultant in doing so. Client agrees to
provide Consultant with timely written notice of any such claim or action,
with copies of all papers Client may receive relating thereto. If the
Creative Materiais, or any part thereof, is heid to infringe and the use
thereof is enjoined or restrained or, if as a result of a settlement or
compromise, such use is materially adversely restricted, Consultant shail,
at its own expense and as Client's sole remedy, either: (a) procure for
Ciient the right to continue to use the Creative Materials; or (b) modify the
Creative Materials to make it non-infringing, provided that such
modification does not materially adversely affect Client's authorized use
of the Creative Materials; or (c) replace the Creative Materials
with equally suitable, compatible, and functionally equivalent non-
infringing Creative Materials at no additional charge to Client; or (d) if
none of the foregoing alternatives is reasonably available to Consultant,
terminate this Agreement and refund to Client the payments actually
rr�ad� to Consultant under this Agreement.
C. Neither Client nor Consultant shall be liable under this Agreement, or any
SOW, for any indirect, incidental, special, punitive or consequential
damages from any cause of action, whether in contract, tort or otherwise.
In no event will the total aggregate liability of Cansultant for any claims,
losses or damages arising out of this Agreement exceed the total amount
of fees and other consideration actually received by Consultant under this
Agreement, or any SOW. The foregoing limitation of liability and
exclusion of certain damages shall apply regardless of the success or
effectiveness of any other remedies. Consultant shall not be liable for
any loss or damage caused by the fai�ure of the Site to properly or timely
operate.
D. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS
AGREEMENT AND TO THE GREATEST EXTENT ALLOWED BY LAW,
CONSULTANT HEREBY EXPRESSLY DISCLAIMS AL� WARRANTIES
AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH REGARD
TO THE SITE, SERVICES, MARKETING MATERIALS, DELIVERABLES
AND MATERIALS PROVIDED HEREUNDER, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OR MERCHANTABILITY
AND FITNESS FOR ANY PARTICULAR USE OR PURPOSE. THE SITE
AND ALL SERVICES, MATERIALS AND DELIVERAB�ES WILL BE
PROVIDED TO CLIENT "AS IS."
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9. CONFIDENTIALITY. During the term of this Agreement, each party (the
"Disclosing Party") may provide the other (the "Receiving Party") with ce►tain confidential and
proprietary information ("Confidentiai Information"). Confidential Information includes, but is not
limited to, (a) the Deliverables, (b) all business, financial and technical trade secrets, (c) any
written information which is marked "Confidential", and (d) any information which is orally
disclosed, identified as confidential at the time of disclosure and confirmed in writing as being
confidential within 30 days thereafter. Confidential Information shall not include information that
(a) is publicly known at the time of its disclosure; (b) is lawfully received by the Receiving Party
from a third party not under an obligation of confidentiality to the Disclosing Party; (c) is
published or otherwise made known to the public by the Disclosing Party; or (d) is required to be
disclosed by law, rule, regulation or court order. The Receiving Party will refrain from using the
Disclosing Party's Confidential Information except to the extent necessary to exercise its rights
or perform its obligations under this Agreement, Except as required by law, the Receiving Party
may not disclose the Disclosing Party's Confidential Information to any third party, other than its
affiliates or representatives who have an absolute need to know such Confidential Information in
order for the Receiving Party to perform its obligations and enjoy its rights under this
Agreement, and only if such persons are informed of and are subject to the provisions of this
Section 9. The Receiving Party remains liable for any unauthorized use or disclosure of the
Confidential Information by any such representative or affiliate.
10. WEBSITE TERMS OF USE AND PRIVACY POLICY. Consultant shall include
on the Site ce�tain terms of use ("Terms of Use") and privacy policies (the "Privacy Policy") that
govern the activities of Consultant and the users on the Site, including the use of users'
personal information. Client represents that it has read and is familiar with the Terms of Use
and Private Policy and, to the extent applicable, shall govern itself in accordance therewith.
11. GOVERNING LAW / VENUE. This Agreement is to be construed in accordance
with and governed by the laws of the State of Texas without giving effect to any choice af law
rule that would cause the application of the laws of any jurisdiction other than the laws of the
State of Texas to the rights and duties of the parties. Venue for any action or suit pursuant to
this Agreement shall be in that state courts of Tarrant County, Texas, or the United States
Federal District Court for the Northern District of Texas, Fo�t Worth Division.
12. ASSIGNMENT. Neither party may assign any of its rights or this Agreement or
delegate any of its obligations to any party without the consent of the other, except that
Consultant shall be permitted to assign or delegate in conjunction with a merger, consolidation,
change in control or sale of substantially all of the assets to which the Agreement pertains;
however, Consultant shall provide Client thirty days notice of any such assignment. This
Agreement is binding upon and enforceable by each party's permitted successors and assigns.
13. INDEPENDENT CONTRACTOR. Client and Consultant intend at all times for
Consultant to be an independent contractor. Neither party is an employee, joint venturer, agent
or partner of the other, nor is either party authorized to assume or create any obligations or
liabilities, express or implied, on behalf of or in the name of the other. The employees,
methods, facilities and equipment of each pa�ty shall at all times be under the exclusive
direction and control of that party.
14. NOTICES. Any notice, consent or other communication required or permitted
hereunder shall be in writing. It shall be deemed given when (a) sent by confirmed facsimile
transmission or email with confirmation of receipt, (b) sent by commercial overnight courier with
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written verification of receipt, or (c) sent by registered or certified mail, return receipt requested,
postage prepaid, and the receipt is returned to the sender, in each case to the address,
facsimile number, or e-mail address set forth on the signature page of this Agreement, or such
other address, facsimile number, or e-mail address of a party that is provided by that party, to
the other party, in compliance with the notice requirements of this Section.
15. WAIVER. Ail waivers to any terms and conditions of this Agreement (or any
rights, powers or remedies under it) by either party must be in writing in order to be effective.
No waiver granted with respect to one matter or incident will be construed to operate as a
waiver with respect to any different or subsequent matter or incident.
16. SEVERABILITY. If any provision of this Agreement is held to be unenforceable,
then both Parties shall be relieved of all obligations arising under such provision, but only to the
extent that such provision is unenforceable, and this Agreement shall be deerned amended by
modifying such provision to the extent necessary to make it enforceable while preserving its
intent or, if that is not possible, by substituting another provision that is enforceable and
achieves the same objective and economic result. The unenforceability or invalidity of any
provision shall in no way affect or impair the remaining provisions. IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT EACH PROVISION OF THIS AGREEMENT WHICH
PROVIDES FOR A LIMITA710N OF L.IABILITY, DISCLAIMER OF WARRANTIES,
INDEMNIFICATION OR EXC�USION OF DAMAGES OR OTHER REMEDIES IS INTENDED
TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED
THAT IN THE EVENT ANY REMEDY UNDER THIS AGREEMENT IS DETERMINED TO HAVE
FAILED OF ITS ESSENTIAL PURPOSE, AL� LIMITATIONS OF LIABILITY AND EXCLUSIONS
OF DAMAGES OR OTHER REMEDIES SHAL� REMAIN IN EFFECT.
17. CONSTRUCTION. The words "or" and "nor" are inclusive and include "and".
"Including" means "including without limitation" and does not limit the preceding words or terms.
The singular shall include the plural and vice versa. References to "Sections", "Subsections" or
"Exhibits" shall mean the Sections of this Agreement, Subsection of this Agreement or Exhibits
attached to this Agreement, unless otherwise expressly indicated. The headings or titles
preceding the text of the Sections or Subsections are inserted solely for convenience of
reference, and shall not constitute a part of this Agreement, nor shall they affect the meaning,
construction or effect of this Agreement.
18. FORCE MAJEURE. In the event of a force majeure condition, including but not
limited to fires, acts of God, terrorist attacks, labor disputes, the party whose performance is
restricted shall be excused from such performance and shall commence performance when
such force majeure is removed. The foregoing shall not apply to any payment obligation of
Client hereunder.
19. COUNTERPARTS. This Agreement may be executed in multiple counterparts
and by facsimile, each of which so executed will be deemed to be an original and such
counterparts together will constitute one and the same agreement.
20. COMP�IANCE WITH LAWS. Each party shall comply with all United States
federal, state and local laws, statutes, rules and regulations applicable to this Agreement.
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21. SURVIVAL. The provisions of this Agreement that by their nature extend beyond
the expiration or earlier termination of the Agreement will survive and remain in effect until all
obligations are satisfied.
22. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement, together with any
Exhibits attached hereto or referenced herein, constitutes the entire agreement of the parties
regarding the subject matter herein and supersedes ali prior or contemporaneous agreements,
understandings or cammunications between the parties, whekher written or oral. This
Agreement may not be amended, modified, qualified or otherwise changed or altered except in
writing executed by an authorized signatory of each party hereto.
(Remainder of This Page Intentionally Left Blank; Signature Page Fallows.
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IN WITNESS WHEREOF, CLIENT and CONSULTANT have executed this Agreement as of the
Effective Date.
CLENT:
City of Fort Worth TX
1000 Throckmorton Street
Fo�t Worth, TX�7�6102
�� �
�
i� ,-�'�--i,�,L'���� l;; I � i
Si na ure ate
Susan Atanis
Assistant City Manager
�PPR V D T FORM AND LEGALITY:
p�N1S`� ay, hsSt C cctc �(cT`i
Maleshia B. Farmer, Sr. Assistant City Attorney
�t� �l-t C � �� .�.a�'�n�
ATT
Mary J. Kayser,
Secretary
I)cvclupnunl and Scrviccs Agrccmcnl
Signaliuc I'agc.
i
CONSULTANT:
Socialmentum, LLC
1111 N. 13th Street, Suite 101
Omaha, NE 68102
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Signature Date
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Printed Name / Title
;.��t
OFFICYA�, R!��Q�tD
CITY SEC�E°���1�'
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EXHIBIT A
SERVICES
SOW #202-0001
FOR PRODUCT AND SUPPORT SERVICES AGREEMENT BETWEEN CITY OF FORT
WORTH, TX AND SOCIA�MENTUM, LLC DATED June 10, 2013.
Client Informatian.
Company Name: City of Fort Worth, TX
Contact Person; Brian Chatman
Address: 1000 Throckmorton Street, Fart Worth, TX 76102
Phone: 817-392-6188
Email: brian.chatman@fortworthtexas.gov
2. PRODUCT — MINDMIXER WEB APP�ICATION
A. MindMixer Web Application
The Product shall inciude ail aspects of the MindMixer
Engagement Platform, including idea submission, idea
evolvement, user voting, interactive budgeting, and expert / client
feedback (two-way engagement). Consultant will provide Client
access to the MindMixer Content Management Dashboard and
the MindMixer Data Dashboard.
ii) Client is responsible for selecting and uploading Site topics and
any asset associated with each topic (i.e. photos, maps, videos,
etc.). Consultant may reject topics and topic assets at sole
discretion if topics contain obscene material, offensive language,
or defamatory remarks about an individual or entity.
iii) Client is solely responsible for the time and cost associated with
topic asset production related to the Site (i.e., video introductions
of topics, topic photos, map production, etc.).
iv) Consultant will work with Client to identify Project Name, secure
UR�, and host 5ite for operation through the Term.
v) Site UR� will be retained by Consultant until future use is decided
on MindMixer projects, with an option for Client to retain
ownership if both parties mutually agree.
vi) 5ite will remain "live" as a read-only site for up to three (3) months
after termination/expiration of this Agreement.
3. TECHNICAL. SUPPORT
A. Onboarding + Technical Suppart
i} Onboarding and Training Sessions (via WebEx):
(a) Includes links to library of best practices and site
optimization videos.
Ex.A-1
;s�a�o �
ii) Consultant will provide general user suppo�t (password
navigation issues, site utilization questions, etc.)
B. Community Building Resources
i) Media Starter Kit:
• Twitter and Facebook library
• Project description in 140 characters or less
• Social media distribution plan
• Formal press release template
� Email blast template
• Project posters and handouts (electronic version)
reset, site
ACCEPTED AND AGREED TO BY:
CITY OF FORT WOF��'�I T�X, CLIENT
C � ( �-� ;: _
: . _, ---_�__
By:
: _ _�__-
Susar-rA anis
SOCIALMENTUM, LLC., CONSULTANT
By: D�� �,�-
Name: NQ-�'hOt,v� prtl�.t,t,uvv
Assistant City Manager
Date: �L' i `: �� i '�
Title: C� 0
Date: �D ' � �- � � J
Ex. A - 2
;x�,a�,u a
EXHIBIT B
FEES
SOW #202-0001
FOR PRODUCT AND SUPPORT SERVICES AGREEMENT BETWEEN CITY OF FORT
WORTH, TX AND SOCIA�MENTUM, LLC DATED June 10, 2013.
The following is a summary of the Fees associated with the Services provided by
Consultant hereunder.
1. Product — MindMixer Web Application
a. $899 / month (invoiced Monthly)
2. General
a. Except as atherwise pravided herein or in an appiicable SOW, all Fees due to the
Consultant wiil be payable within 30 days of receipt of the applicable invoice.
b. Client shali not be responsibie for payment of any expenses incurred by Consultant
in perfomring services under this Agreement.
c. All payments of the Fees must be made by check or electronic funds transfer to
Consultant at 1111 N. 13th Street, Suite 101, Omaha, NE 68102.
Ex.6-1
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