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HomeMy WebLinkAboutContract 47333 CITYSECRETARN COMRACT W. ,s`;,i�i` Recyciciaaa7k Representative. Laurie Johnson CITY OF FORT WORTH INCENTIVE PROGRAM "This form agreement is subject to the applicable terms and conditions set forth below by and between Recyclebank, LLC ("Recyclebank") and The City of Fort Worth, ("City"), as identified in Section 2 below, Recyclebank and City are referred individually as a "Party" or collectively as the"Parties".This Agreement, including any Addendum, is not valid unless signed by both Parties. -1 ION Organization name: The City of Fort Worth Primary contact: Sheri Endsley, District Superintendent Address: 4200 South Freeway,Suite. 2200. Fort Worth,Texas 76115 Website: www,fortworthtexas.gov Email: sfreri.(--,ndsleyC)fortworthtexas.gov Phone: 857392.5700 Effective Date: Ot 6e,7, �e,l, Yr'NV fin uF. Campaign Start Date: F_�. t-y 1, 2015 Campaign End Date: Can-going(subject to an amendment signed by both Parties or termination per the terms of this Agreement). Program Description Details ., ,... Recyclebank offers an incentive recycling program (the "Program") currently available in Fort Worth,Texas (the "Area"), For purposes of this Agreement and in furtherance of the � Program, Recyclebank agrees to pay the City Five Dollars ($5.00) (the "Fee") for each Area r resident who registers as a member to Recyclebank's Program through the City's efforts during the Term of this Agreernera. The n7ernber registration must be completed and in adherence with the Recyclebank Membership Agreement. a Recyclebank will support City's efforts by: Providing the City with Recyclebank-branded promotional material to help P the Program during the Term of this Agreement. City shall not alter nor Recyclebank Incentive Program modify the promotional material in any way without the express permission of" Recyclebank. Providing the City a unique URL to Recyclebank's website s (www.i-ecyclebanl<.coni) (the "Site") intended to track each Area resident # membership conducted through the City's efforts under this Agreement. Tracking and reviewing all new membership registration resulting from the City's ( unique URL and processing payment on a monthly basis to City in Keeping with this Agreement. i Agreement with Recyclebank 1 of 7 CITY SHCRE I ARY ECTION These Standard Terms and Conditions ("Terms") are entered in by, as applicable, the City signing these Terms or any document that references these Terms and Recyclebank These Terms govern City's participation in Recyclebank's Program, These Terms, including those set forth in the Addendum attached hereto and incorporated herein for all purposes ("Addendum"), comprise the entire agreement and understanding between the Parties and are collectively referred to herein as the"Agreement" 1.THE PROGRAM. Recyclebank provides the City access to Recyclebank's promotional material for the City's promotional use under this Agreement. Recyclebank offers the Program in keeping with the Recyclebank Membership Agreement and its Privacy Policy, both of which are agreements between any person or entity that registers for the Program and Recyclebank and neither of which are a part of this Agreement. 2. PAYMENT. City shall be responsible for submitting to Recyclebank all related forms (i.e. W-9, new vendor forms) and any additional documentation reasonably required by Recyclebank to process payment under this Agreement. Recyclebank agree to pay City the Pee as identified in Section 3 of this Agreement on a monthly basis, but no later than the 10`x'day of each month during the Term of this Agreement. To dispute any portion of the Fee paid or owed under the Agreement,the City must communicate in writing with Recyclebank within the thirty (30) day period from the date payment is received or should have been received, detailing the dispute, the reasonable basis for the dispute and providing any pertinent documentation supporting the dispute to allow Recyclebank the opportunity to review. Recyclebank reserves the right to revise the payment structure at its sole and absolute reasonable discretion at any time following the launch of the Program upon thirty(30)days prior written notice to the City. 3. TERMINATION. Recyclebank may terminate this Agreement at any time and for any or no reason. The City may terminate this Agreement by providing five (5) business days' prior written notice at any time and for any or no reason. Termination shall be without prejudice to any rights and obligations of the Parties that have vested prior to termination. The Parties expressly agree Section 2 through Section 15, and the Addendum,shall survive any termination of this Agreement. 4. PROGRAM DATA. City may receive certain data by Recyclebank or in promotion of the Program, including data that is obtained, collected, or derived as a result of any targeting parameters agreed upon in the Agreement (collectively "Program Data"). City agrees and acknowledges that the Program Data shall be used by City solely for internal purposes and will not be disclosed to a third party or published without Recyclebank's prior written consent. Notwithstanding anything to the contrary, this section is subject to all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, Chapter 552 of the Texas Government Code, otherwise known as the Texas Public Information Act. S. RECYCLEBANK INFORMATION; USE OF INFORMATION; FORM OF USE. a) in order to promote the Program, Recyclebank will provide City certain promotion material. Recyclebank represents and warrants that it Holds all rights (including without limitation any copyright, trademark, patent, publicity or other rights) in the proprietary information it provides to City, which includes but is not limited to, Recyclebank's trademarks, trade name(s), logo(s), ad content, ad information, ad URL(s),website(s), and landing page(s) (collectively"Recyclebank Information"). b) The City agrees to use the Recyclebank Information only for the purpose contemplated in this Agreement, in accordance with Recyclebank's prior written approval and in the form and manner and with appropriate legends as reasonably prescribed from time to time by Recyclebank in accordance with customary trademark practices. E. SITES AND INFORMATION. Neither party is responsible for any aspect of the other party's website(s). Both Parties represent, warrant, and covenant that: (i) all information is, and will be updated to remain current and accurate, and (ii) either party's information is either original or the party has secured all necessary rights and licenses for its use as contemplated by the Agreement, and,further, is responsible for all royalties, payments, and fees with respect thereto (e.g., performing rights society fees). Agreement with Recyclebank 2 of 7 1. CONFIDENTIALITY. Recyclebank understands and acknowledges that City is a public entity under the laws of the State of Texas and, as such, all documents held by City are subject to disclosure under Chapter 552 of the Texas Government Code. Recyclebank shall clearly indicate to City what information it deems proprietary. If City is required to disclose any documents that may reveal any of Recyclebank's proprietary information to third parties under the Texas Gove rnment Code, or by any other legal process, law, rule, or judicial order by a court of competent jurisdiction, City will notify Recyclebank prior to disclosure of such documents, and give Recyclebank the opportunity to submit reasons for objections to disclosure. City agrees to restrict access to Recyclebank's information to those persons within its organization who have a need to know for purposes of management of this Agreement. City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any un- authorized disclosure or transfer of information. City will use its best efforts to secure and protect Recyclebank's information in the same manner and to the same degree it protects its own proprietary information; however, City does not guarantee that any information deemed proprietary by Recyclebank will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three(3)years after the expiration of this Agreement. 8. REPRESENTATIONS. City represents, warrants, and covenants, to the best of its knowledge, that: (i) it has the right and/or authority to enter into the Agreement, and (ii) City will not reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of any Promotion,or any aspect or portion thereof. 9. LIMITATION OF LIABILITY. EXCEPT FOR INTENTIONAL MISCONDUCT OR BREACH OF SECTION 5, 6, 7, AND 8, TO THE FULLEST EXTENT PERMITTED BY LAW: (a) NEITHER PART{ WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROF[FS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OR INTERRUPTION T01 OTHER PARTY'S BUSINESS)WHETHER IN CONTRACT,TORT(INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (b) EACH PARTY'S AGGREGATE LIABILITY TO THE 01-HER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO RECYCLEBANK BY CITY FOR THE PROMOTION IN A SPECIFIC 10 GIVING RISE TO THE CLAIM. 10, WARRANTY DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCCPT AS OTHERWISE AGREED TO IN THIS AGREEMENT, RECYCLEBANK PROVIDES THE PROGRAM, PROMOTION(S) AND WEBSITE(S) ON AN "AS IS" BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND CBO'S USE THEREOF IS Ai CBO'S OWN RISK. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN. RECYCLEBANK DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY, SERVICE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. 11. INDEMNIFICATION. a) City agrees to defend, indemnify and 'hold harmless Recyclebank, its Affiliates, as defined below, and their respective directors, officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees) (collectively"Losses") incurred as a result of the City's breach of this Agreement, any City information provided to Recyclebank infringing on third party rights, or any City information being defamatory or obscene or violating any law, regulation or other judicial or administrative action. An Affiliate means, with respect to either Party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such Party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such Party. b) Recyclebank agrees to defend, indemnify and hold 'harmless the City and its Affiliates and their respective directors, officers, employees and agents from any and all Losses (as defined above) incurred as a result of Recyclebank's breach of its representations and warranties or violation of its policies or resulting from Recyclebank's infringing on third party rights, or any Recyclebank information being defamatory or obscene or violating any lavv', regulation or other judicial or administrative action. Agreement with Recyclebank 3 of 7 .. C) If any action will be brought against either party(the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other party ("Indemnifying Party") the Indemnified Party will promptly notify the Indemnifying Party of such claim of which it becomes aware and will: (i)provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim.The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party. 12.CHOICE OF LAW;VENUE.The terms of the Agreement and any dispute arising or relating to the Agreement shall be construed by the laws of the State of New York,without regard to conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. The City agrees to submit to the exclusive jurisdiction of the state and federal courts located in New York County, New York. Any claim against Recyclebank will be adjudicated on an individual basis and will not be consolidated in any proceeding with any claim or controversy of any other party. . 13. NOTICES, Recyclebank will send all notices to City by recognized overnight courier or certified mail, return receipt requested, to: City of Fort Worth, Parks and Community Services Department, Attn: SWR — Contract Compliance Division, 4200 South Freeway, Suite 2200, Fort Worth, Texas 76115 or to such other address as the City may hereafter designate by notice in writing. . City will send all notices to Recyclebank via e-mail to the email address provided by Recyclebank or by recognized overnight courier or certified mail, return receipt requested,to: Legal Department, Recyclebank, LLC,443 Park Ave. South,9`h Floor, New York, New York 10016. 14. ENTIRE AGREEMENT. This Agreement, including the Addendum, constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and terminates and supersedes any such prior agreement or understanding, oral or written, between the Parties with respect thereto. The Parties acknowledge and agree that neither of them has made any representation with respect to the subject matter of the Agreement, including the Addendum or any representations inducing its execution and delivery except those specifically set forth. Each of the Parties acknowledges that such Party has relied on the Party's own judgment in entering into the Agreement, including the Addendum. 15. GENERAL PROVISIONS. Neither Party may assign, sublicense or transfer the Agreement or any right or duty hereunder to any third party. Any assignment, transfer, or attempted assignment or transfer in violation of this Section 15 will be void and of no force or effect. The Program(s) is proprietary to Recycle bank and protected by the applicable state,federal, and international intellectual property laws and we retain all rights, title, and interests in the Program(s), together with all derivative works, modifications, enhancements, and upgrades, but excluding your Information. Any rights not expressly granted in the Agreement are reserved by either Party, as applicable, and all implied licenses are disclaimed. If the event any provision of the Agreement is held or made invalid or unenforceable for any reason by a court of competent jurisdiction, such invalidity will not affect the remainder of the Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar economic effect. Neither Party shall be deemed in default of these Terms to the extent that performance of its obligations (other than payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of governments, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications, or any other cause beyond the reasonable control of such party.This Agreement may not be amended except in a writing signed by both Parties. Any waiver of the provisions of these Terms or of a party's rights or remedies under these Terms must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of these Terms or its rights or remedies at any time, will not be construed as a waiver of such party's rights. The Parties are independent contractors and nothing in the Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between Recyclebank and the CITY. Except as otherwise set forth in the Agreement, neither you nor we will have any right, power, or authority to create any obligation or responsibility on behalf of the other and the Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in,any third party. Agreement with Recyclebank 4 of 7 IN Wl I NESS WHEREOF,the Parties have executed this Agreement as of the effective clate in Section 2. RECYCLEBANK, 111 The City of Fort Worth; i nature Signaturc,� ................w S P � � Narne: Laurie johnson Name: & Su s n Alanis -title VP Client Services Title: Assistant:City Manager Date: October 27, 20:15 Date: 1 y- APPROVED AS TO FORM AND LEGALITY: By: ...,..... Assi4fght City Attorney ATTEST: By: City Se , c� a, a 0 co NO M&C . E UIRED RETI t-qn wor Agreement with Recyclebank 5 of 7 ADDENDUM TO AGREEMENT BETWEEN THE CITY OF FORT WORTH AND RECYCLEBANK, LLC This Addendum ("Addendum") is by and between the City of Fort Worth ("City") and Recyclebank, LLC, a Delaware limited liability company ("Recyclebank") and is intended to supplement the Agreement between the City and Recyclebank governing participation in Recyclebank's Program, as set forth above. This Addendum is attached to said Agreement and is subject to the following terms and conditions, which are incorporated for all purposes into the Agreement. In the event of a conflict between the Agreement and the terms set forth in this Addendum,this Addendum shall govern. Any conflicting terms are hereby deleted in their entirety and replaced by the terms stated in this Addendum. Any term or condition of the Agreement that is not superseded by a term or condition of this Addendum shall remain in full force and effect. 1. Governing Law and Venue. If any action,whether real or asserted,at law or in equity,arises on the basis of any provision of the Agreement, including this Addendum, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. This Agreement, including this Addendum,shall be construed in accordance with the laws of the State of Texas. 2. Insurance. Recyclebank shall carry insurance in types and amounts required by the City's Risk Manager or that person's designee for the Term of the Agreement and include the City as an additional insured on any such insurance. Recyclebank shall furnish the City with certificates of insurance along with copies of policy declaration pages and all policy endorsements as evidence thereof. 3. Limitations. City is subject to constitutional and statutory limitations on its ability to enter into certain terms and conditions of the Agreement, including this Addendum, which may include, but are not limited to, those terms and conditions relating to: disclaimers and limitations of warranties; disclaimers and limitations of liability for damages; waivers, disclaimers, and limitations on legal rights, remedies, requirements,and processes; limitations of time in which to bring legal action;granting control of litigation or settlement to another party; liability for acts or omissions of third parties; payment of attorney's fees; dispute resolution; indemnities; and confidential information. Terms and conditions that are the subject of any constitutional or statutory limitation will only be binding on City to the extent permitted by the Constitution and the laws of the State of Texas. It is understood that by execution of the Agreement, including this Addendum, the City does not waive or surrender any of it governmental powers or immunities. Nothing contained in the Agreement, including this Addendum,shall ever be construed so as to require the City to create a sinking fund or to access,levy,and collect any tax to fund its obligations. 4. INDEMNIFICATION. RECYCLEBANK SHALL AND DOES HEREBY AGREE TO INDEMNIFY, PROTECT, DEFEND AND HOLD HARMLESS CITY AND CITY'S EMPLOYEES,REPRESENTATIVES,OFFICERS,AGENTS,AND SERVANTS(COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES. LIENS, CAUSES OF ACTION, SUITS,JUDGMENTS AND EXPENSES, (INCLUDING, BUT NOT LIMITED TO, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION), OF ANY NATURE, KIND OR DESCRIPTION ARISING OR ALLEGED TO ARISE BY ANY BREACH, VIOLATION OR NONPERFORMANCE OF ANY COVENANT OF RECYCLEBANK UNDER THE AGREEMENT, INCLUDING THIS ADDENDUM, OR BY REASON OF ANY OTHER CLAIM WHATSOEVER OF ANY PERSON OR PARTY OCCASIONED OR ALLEGED TO BE OCCASIONED IN WHOLE OR IN PART BY ANY ACT OR OMISSION ON THE PART OF RECYCLEBANK OR ANY EMPLOYEE, DIRECTOR, OFFICER, SERVANT, OR CONTRACTOR OF RECYCLEBANK,OR ANYONE RECYCLEBANK CONTROLS OR EXERCISES CONTROL OVER. 5. Intellectual Property. Recyclebank agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third-party copyrighted works by Recyclebank. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Recyclebank without the appropriate licenses or permission being secured by Recyclebank in advance. IT IS FURTHER AGREED THAT RECYCLEBANK SHALL RELEASE, DEFEND, INDEMNIFY,AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO,ATTORNEY'S FEES,TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP,AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Recyclebank. Agreement with Recyclebank 6 of 7 6. COPYRIGHT INFRINGEMENT - Recyclebank agrees to defend, settle, and pay, at its own cost and expense, any claim or action against the City for infringement of any patent, copyright, trade secret, or similar property right arising from City's use of the Program and any associated documents, resources, items, media and the like, including, but not limited to, the any and all promotional material and Site content (collectively"Items"), in accordance with this Agreement. Recyclebank shall have the sole 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,and City agrees to cooperate with it in doing so.City agrees to give Recyclebank timely written notice of any such claim or action,with copies of all papers City may receive relating thereto. If the Items are 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, Recyclebank shall, at its own expense and as City's sole remedy,either: (a) procure for City the right to continue to use the Items; or (b) modify the Items to make them non-infringing, provided that such modification does not materially adversely affect City's authorized use of the Items; or (c) replace the Items with equally suitable, compatible, and functionally equivalent non- infringing Items at no additional charge to City;or(d) if none of the foregoing alternatives is reasonably available to Recyclebank, terminate this agreement and refund to City the payments actually made to Recyclebank under this Agreement. 7. Limitation of Liability and Disclaimer of Warranties: Recyclebank's liability under the Agreement shall not be limited in any way. 8. Authority. By executing this Agreement, including the Addendum, Recyclebank's agent affirms that he or she is authorized by the Recyclebank to execute this Agreement, including the Addendum, and that all representations made herein with regard to Recyclebank's identity, address and legal status(corporation, partnership, individual, etc.)are true and correct. CITY OF FORT WORTH: RECYCLEBANK,LLC 1� By: / By: 7S san Alanis Laurie Johnson Assistant City Manager VP Client Services Date: �� ... � � � Date: APPROVED AS TO FORM AND LEGALITY: By: As t4nf City Attorney _ , � �6 ATTEST: Y: $ City S�cr ry r III OFFICIAL RECORD !� WORI"I'k, T Agreement with Recyclebank 7 of 7