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HomeMy WebLinkAboutContract 45507 CITY SECREIAW OPENGOV,INC.SOFTWARE AGREEMENT CONTRACTNO. WON" IIIIIIiIIIIN WHERE ORGANIZATION CONTACT BILLING C O TAg if D iffer raa Customer Name: City of Ft. Worth,T; Contact lame.- Susan Alanis,Assistant City Manager Steve Strerfert,A ssastant Director, Operations, IT Solutions Department Address: 1000 Throokmorton Street 1000 Throokrnorton Street Fort Worth,TX 7 102 Fort Worth, TX 761 102 Telephone: 817-392- 17-392-2221 Email:: susan.alanis@fortworthtexas.gov stewen.streiffert @fortworthtexas.gov Effective Date: April 14,2014 Software Services Annual Budget 'view: A proprietary web, application that visualizes the customer's general ledger and chart of accounts, making multiple years of annual financial data accessible to citizens and staff through an online portal. Current Year View: A proprietary web application that visualizes the customer's general ledger and chart of accounts such that monthly, quarterly, or year-tea-date financial data is accessible through an online portal. Transactions/Checkbook view: A proprietary web application that stores and displays the customer's transactional or checkbook data through a searchable online portali. Fees: In consideration of Customer using the Services identified above, Customer shall pay CipenGov, Inc. a fee of$24,900, billed)annually in advance for the period of the agreement, commencing on the Effective Date. Welcome to penGo l Thanks for using our software. This Software Agreement ("Agreement") is entered into between penGov, Inc.,with its principal place of business at 1023 Shoreline Blvd, Suite 10,01, Mountain View, CA 94043 `OpwenGov" , and you, the entity identified above ("Customer"), as of the Effective Cate. This Agreement includes and incorporates the OlpenGiov Terms and Conditions attached as Appendix A. By signing this Agreement, Customer acknowledges that it has reviewed, and agrees to be legally bound by,the 01penGlov Terms and Conditions. Each party's acceptance of this Agreement is conditional upon the other's acceptance of the terms in the Agreement to the exclusion of,call other terms.. Customer Signature: "Tinted Larne: usa laanis Title: Assistant City Manager Date.- A 111. O'W7gWpc 6MW�;,,ry1N91MV OFFICIAL RECORD ONO0 a' 7 CITY 0 CD «� ��.'" ignature, 0 Lui iiio ou O II6�V �.P 1100 or*r /TOmf@MAY91PRIId; fOiIN;l�i.�'All ��N�u�'U �!VU011II6FNWINNi@ If u,ry;',IUIIIIINVVIIIIIOIIU'VINh16YIIIIUJ4"JIOOONIp @UflWi(iN, 00000000 Title: LLJ �ex i�t n Date- 0 fri. 1n��ixr AtW*d APPROVED: �S T +ARM AND LEGALI Y by�-N� w�Iryi,,. Sri �'4.. tom.. „*«*" Mary, MY or,,titySeentery Assistant City Attorney 4.p .Igndix A O�pgnGo .Terms and Conditions I. SOFTWARE,SERVICES 1.1 Subjectto the terms and conditions of these OpenGov Terms and Conditions(the"Agreement"),O�p�enGov will use commercially, rea,soinable efforts to perform the software services(the"Software Services") identified in the applicable Software Agreement entered into by OpenGov and Customer("Software Agreement"). 1.2 Customer understands that OplenGov's performance depends on, Customer timely providing OpenGov with a copy of the Customers chart of' accounts in csv or xIs format within the timeframe agreed to by OpenGov and the Customer. In addition, Cus,tolme!r agi,rees to provide OpenGov with five or more years of general le�dgeir data, also,in, csv or xIs format, including:budget data for the curre�n�t, year and actual expense and revenue data for past years. Any dates or time periods re�levant to OpenGov's performance will be extended a�pipro�p:r,iately and equitably to reflect any delays caused by Customer's failure to timely deliver any such materials. OpenGov shall not be liable for any delays, in performance under this Agreement resulting from Customer 11 s,failure to meet these obligations. 2. RESTRICTIONS AND RESPONSIBILITIES 2.1 This is a contract for access to the Software Services and Customer a,g�reels not to, d�irectly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software Services, documentation or data related,to the Software Services, except to the extent such a restriction is limiited by applicable law; modify, translate, oir create derivative works based on the Software Services; or copy, rent, lease, distrib,ute�, assign sell,or otherwise commercially explolit,transfer, or encumber rights to the Software Services-or remove any proprietary notices. 2,2 Customer wi'll use the Software Services only in comp,liance with,all applicable laws and regulations(including, but not limited to, i any export restrictions). 2.3 Customer shall be responsible for obtaining and maintaining any equipment and other services needed to connect to, access or otherwise use the Software Services and Customer shall also be responsible for(a)ensuring that such equipment is compatible with, the Software Services, (b) maintaining the security of such equipment, user accounts, passwords and files, and (c)for all auth�orized uses of Customer user accounts. 3. OWNERSHIP. Op,enGov retains all right,title, and interest in the Software Services and all intellectual property rights (including all past, present, and future rights associated with works of authorship, including exclus,ive explolitati�on rightst copyri,g�hts, and moral rights, trademark and trade name rights and sim�ilar rights, trade secret rights, patent rights, and any other proprietary rights in intellectual property of every kind and nature)therein. 4. CONFIDENTIALITY. Each party (the "Receiving Party") agrees not to disclose (except as permitted herein) any Confidential Information of the other party (the "Disclosing Party") without the Disclosing Party's prior written consent. "Confidential Information" mea�ns, a�ll confidential business, technical, and financial informatioln of the disclosing party that is marked as "Confidential" or an equivalent design�ation or that should reasonably be understood to be, confidential given the nature of the information and/or the circumstances surrounding the disclosure.OpeniGlov's Confidential Information includes,without limitatioln,the software underlying the Software Services and all docume�ntation, relating to the Software Services., "Confidential Information"does not include"Public Data,"' which is data thatthe Customer has prev�ious,ly released o�r would be required to release according to applicable federal,state,or local public records laws. The Receiving Party agre�es, (i) to u�se and disclose the Confidential Information only in connection with this Agreement; and (ii)to,protect such Confidential Information using the measures that Receiving Party employs w,ith respect to its own Confidential Information of a similar nature, but in no event with less than reasoniab�l�e, care, Notwithstanding, the foregoing, Confidential Information does not include information that: (i)has become publicly known through no,breach by the receiving,party; (ii) was rightfully received by the receiving party from a th,ird party without restriction on use or disclosure, or (iii) is i�nide�p�end�en�tly developed by the Receiving Party without access to, such Confidential Information, Notwithstanding the above, the Receiving Party may disclose Confidential Information to the extent required by law or court order, provided that prior written notice of such required disclosure and an opportunity to oppose or limit disclosure is,given to the Disclos,ing Party. 5. DATA LICENSE. Customer grants OpenGov a non-exclusive, transferabile, perpetual, worldwide, and royalty-free license to copy, modify, and make de,rivatlive works of any data or information submitted by Customer to,OpenGov for the development of new, software or the provision of the Software S�ervice,s, 6. PAYMENT OF FEES.The fees for the Software Services("Fees")are set forth in the applicable Software Agreement. Customer shall pay all Fees within thirty(30) days after the date of' OpenGov's invoice (which OpenGiov typically sends 45 days after the Effective Datel). Unipaid invoices may,be subject to a finance charge of 1,5%per month,on any outstanding balance, or the maximum permitted by law,whichever,is lower. 7. TERM&TERMINATION 7.1 Subject to compliance with all terms and cond�itions, the initial term of this Agreement shall be from the Effective Date and shall co,ntinue for a period of twelve(12)months from that date. The customer will have the option to renew this agreement for subsequent twelve(12)month terms by informing OpenGov of its intention to do so before the end of the current term. The customer will be billed on an,annual basis for each twelve(12) month term, and either party may terminate this Agreement at the end of the applicable term, without penalty, with thii�rty (3,0) days prior written notice. If e,ither party materially breaches any term of this Agreement and fails to cure such breach within thirty (301)days,after notice by the non-breaching party(ten (10)days in the case ofnon-payment),the non- breaching party may terminate this Agreement immediately upo�n notice. T2 Upon t,erminatio�n, Customer wi�ll pay in full for all Software Services performed up to and including the effective date of termination. Upon any termination of this, Agreement, (a) all Software Services provided to Cust orner hereunder shal�l immediately terminate; and (b) each party shall return to the other party or, at the other party's option, destroy all Confidential Information of the other party in:its possession. 7.3 Sections,3,4,8,9 and 11 shall,su,rvive termination of this Agreement. 8. WARRANTY AND DISCLAIMER 8.1 OpenGov represents and warrants that: (i) it has all right and authority necessary to enter into a,nd perform this Agreement; and (ii) the Software Services shall be performed in a professional and workmanlike manner in accordance with generally prevailing industry standards. 8,2 Customer represents a,nd warrants that(i) it has,all right and, authority necessary to enter into and perform this Ag�reemein�t; (ii), it own�s all right,title, and interest in and to all data provided to OplenGov for use in and in connection with this Agreement, or possesses the necessary authorization thereto; and(iii)OpenGov"s use of such materials in connection with,the Software Services will not violate the rights of any third pa�rty. 8,.3 OPENGOV'DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES ITWAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE SERVICES. EXCEPT AS SET FORTH IN THIS SECTION 81, THE SOFTWARE SERVICES ARE PROVIDED "AS IS" AND OPENGOV DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY,TITLE,AND FITNESS FOR A PARTICULAR PURPOSE. 9. LIMITATION OF' LIABILITY., NEITHER PARTY,1 NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES, SHALL BE RESPONSIBLE OR LIABLEWITH RESPECT TO ANY SUBJECTMATTER OF THIS AGREEMENT OR RELATED TERMS AND CONDITIONS UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, STRICT LIABILITY; OR OTHER THEORY FOR DAMAGE OR LOSS CAUSED BY THE OTHER PARTY OR� (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL,, OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MATTER BEYOND SUCH PARTYS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS, BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EXCEPT IN THE EVENT OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY"S AGGREGATE, CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO OPENG,O,V(OR, IN THE CASE OF CUSTOMER, PAYABLE) FOR THE SOFTWARE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TOTHE ACT THAT GAVE RISE TO THE LIABILITY,OPENGOV AGREES TO DEFEND, SETTLE, OR PAY, AT ITS OWN COST AND EXPENSE, ANY CLAIM OR ACTION AGAINST THE CUSTOMER FOR INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, OR SIMILAR PROPERTY RIGHT ARISING FROM CUSTOMER'S USE OF THE SOFTWARE SERVICES IN ACCORDANCE WITH THIS AGREEMENT.OP�EN�IGOV SHALL HAVE THE RIGHT'TO CONDUCT THE DEFENSE OF ANY SUCH CLAIM OR ACTION AND ALL NEGOTIATIONS,FOR ITS SETTLEMENT OR COMPROMISE AND TO SETTLE OR COMPROMISE ANY SUCH CLAIM, BUT CUSTOMER SHALL BE ALLOWED TO, PAR1 ICI�PATE AND GIVE INPUT AS IT RELATES TO ANY SETTLEMENT. CUSTOMER AGREES TO GIVE OPENGOV TIMELY WRITTEN NOTICE OF ANY'SUCH CLAIM OR ACTION,WITH COPIES OF ALL PAPERS CUSTOMER MAY RECEIVE RELATING THERETO,., IF THE SOFTWARE SERVICES OR ANY PART THEREOF IS HELD, 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, OPENGOV SHALL, AT ITS OWN, EXPENSE AND AS CUSTOMER#S,SOLE REMEDY, EITHER� (A) PROCURE FOR CUSTOMER THE RIGHT TO CONTINUE, TO USE THE SOFTWARE SERVICES OR (B) MODIFY THE SOFTWARE SERVICES TO MAKE THEM NON-INFRINGING, PROVIDED THAT SUCH MODIFICATION DOES NOT MATERIALLY �i�CE : ADVERSELY AFFECT CUSTOMER'S AUTHORIZED USE OFTHE SOFTWARE S�ER S- OR (C) REPLACE THE SOFTWARE SERVICES W'ITH EQUALLY SUITABLE, COMPATIBLE, AND FUNCTIONALLY EQUIVALENT' NOWINFRINGINGI SOFTWARE SERVICES AT NO ADDITIONAL CHARGE TO CUSTOMER; OR (D) IF NONE OF THE FOREGOING ALTERNATIVES IS REASONABLY AVAILABLE TO OPENGOV, TERMINATE THIS AGREEMENT AND REFUND TO CUSTOMER THE PAYMENTS ACTUALLY MADE TO CUSTOMER UNDER THIS AGREEMENT. 10. MISC ELLA N EOLIS. Capitalized terms not otherwise defined in these Terms a,nd Conditions have the meaning set forth in the applicable, Software Agreement. Neither party shia,l,l be held responsible or liable for any losses, arising out of any delay or failure in performance of any part of this Agreement, other than payment obligations, due to any act of god, act of governmental authority, or due to war, riot; labor difficulty, failu,re of'performance by any third party service, u:lti:l�it,i�es, or equipment,provider�, or any other cause beyond the reason�ab:le co:ntrol of the party delayed or prevented from performing., Olpen�Gov shall have the right to use and display Cu�stomer's logos and trade names for marketing and promotional purposes in connection with OlpieniGov 11 s, we,b:site: and marketing materials,subject to Customer s,trademark usage guildielines(as provided to OpenGov). If any provision of this Agreement is fo,u�n�d to be unenforceable,or inv,alid, that provision will be limited or eliminated to the minimum extent necessa,ry so,that this Agreement w�il�li otherwise remain in full force and effect and enforceable. This Agreement is not assignable or transferable by either party without the other party's prioir written consent,, provided however that either party may assign this Agreement to,a successor to all or substantially all of its blusilniess, or assets. This Agreement (including the Software Agreement) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreemenits,,communications,,and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writ,ing signed by both parties. No agency,partnership,joint venture.,or emplolymie�nit is,created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect. In any action or proceeding, to enforce rights under this Agreement, the prevai,ling party will be entitled to recover costs and attorneys' fees except that OpenGov may only recover attorneys fees from Customer as, authorized by law. All notices under this Agreement shall be in writing and w�ill be deemed to have bee�n d�u,ly g�iven when received, if personally deliivered;when receipt is electronically confirmed') if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. -rh�is Agreement shall' he governed by the laws of the State of Texas without regard to its conflict of laws provisions. 11.Right to Audit.Open Gov agrees that the Customer shall,during the Term, any Renewal,Term,and until the expiration of three (3)years after finale payment under this Agreement,or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times,any directly pertinent books,documents,,papers and records of the Open Gov involving transactions relating to this Agreement in order to determine compliance herewith at no additional cost to the Customer. OlpenGov agrees that the Customer shall have access,during normal working hours,to all necessary Ol enGolv facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section.Customer shall give OpenGov reasonable advance notice of any intended audits.