HomeMy WebLinkAboutContract 50645 COTY SECRETARY
Pet %,C CONTRACT NO.
DATA MANAGEMENT SYSTEM
PETPOINT APPLICATION SERVICE PROVIDER AMENDING AGREEMENT
This Amending Agreement(the"Amending Agreement")is made and entered into as of (the
"Effective Date"),by and between:
Pethealth Services(USA)Inc., City of Fort Worth
3315 Algonquin Road,Suite 450 -and- Animal Care and Control,
Rolling Meadows,IL 60008 4900 Martin Street,
("Pethealth") Fort Worth,TX 76119
(the"Client")
Both Parties entering into the PetPoint Application Service Provider Agreement dated as of August 2010(the"Agreement")
wish to amend the Agreement on the terms and conditions described in this Amending Agreement.
In consideration of the Parties agreeing to amend their obligation in the existing Agreement and other good and valuable
consideration,the receipt and adequacy of which are hereby acknowledged,both parties agree as follows:
1.Amendments
Original Provision Amended Provision
3.Confidentiality. 3.Confidential Information.
Client is a government entity under the laws of the State of
All information relating to the terms of this Agreement Texas and all documents held or maintained by Client are
provided by either Pethealth or the Client in connection subject to disclosure under the Texas Public Information Act.
with the ASP Services,including any information relating to To the extent the Agreement requires that Client maintain
such party's business,operations,customers or otherwise records in violation of the Act,Client hereby objects to such
("Confidential Information")shall be used by the other party provisions and such provisions are hereby deleted from the
solely for the purpose of rendering services pursuant to this Agreement and shall have no force or effect. In the event
Agreement or otherwise discharging its obligations there is a request for information marked Confidential or
hereunder and,except as may be required to carry out this Proprietary, Client shall promptly notify Pethealth. It will be
Agreement,shall not be disclosed to any third party without the responsibility of Seller to submit reasons objecting to
the prior consent of the party providing the information. disclosure. A determination on whether such reasons are
Nothing herein shall be construed to prohibit Pethealth or sufficient will not be decided by Client, but by the Office of
the Client from disclosing Confidential Information when the Attorney General of the State of Texas or by a court of
and to the extent required to do so by any regulatory competent jurisdiction.
authority,by judicial or administrative process or otherwise
by applicable law or regulation
5. No Indemnification by Client. 5.LIABILITY AND INDEMNIFICATION.
a.LIABILITY-PETHEALTH SHALL BE LIABLE AND RESPONSIBLE
Pethealth acknowledges and agrees that under the FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE
Constitution and the laws of the State of Texas,Client AND/OR PERSONAL INJURY,INCLUDING DEATH,TO ANY AND
cannot enter into an agreement whereby Client agrees to ALL PERSONS,OF ANY KIND OR CHARACTER,WHETHER REAL
indemnify any other party,including but not limited to OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT
Pethealth;therefore,all references,excluding those in ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL
Section 4 above,of any kind to Client indemnifying any MISCONDUCT OF PETHEALTH, ITS OFFICERS, AGENTS,
other party,including but not limited to Pethealth,for any SERVANTS OR EMPLOYEES.
reason whatsoever are hereby deemed void and deleted.
b.INDEMNIFICATION-PETHEALTH HEREBY COVENANTS AND
AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE
CLIENT, ITS OFFICERS,AGENTS,SERVANTS AND EMPLOYEES,
FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF
�, r✓� a�, ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED,
f FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING
ALLEGED DAMAGE OR LOSS TO PETHEALTH'S BUSINESS,AND
RECEIVED ANY RESULTING LOST PROFITS) PERSONAL INJURY,
APR 17 2018 l INCLUDING DEATH, TO ANY AND ALL PERSONS, AND
CIIYQfFORT WORTH / DAMAGES FOR CLAINIS OF INTELLECTUAL OPERTY
INFRINGEMENT,ARISING F IN N WITH
6
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PetPoin rvice Agreement Amendment v 1-012018 FT.'-.Qll ilffl,TX
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THIS AGREEMENT,TO THE EXTENT CAUSED BY THE ACTS OR
OMISSIONS OF PETHEALTH, ITS OFFICERS, AGENTS,
SUBCONTRACTORS,SERVANTS OR EMPLOYEES.
c.INTELLECTUAL PROPERTY INFRINGEMENT.
i. Pethealth warrants that all Deliverables, or any part
thereof, furnished hereunder, including but not limited
to: programs, documentation, software, analyses,
applications, methods, ways, and processes (in this
Section 8C each individually referred to as a
"Deliverable" and collectively as the "Deliverables,") do
not infringe upon or violate any patent, copyrights,
trademarks, service marks, trade secrets, or any
intellectual property rights or other third party
proprietary rights, in the performance of services under
this Agreement.
i. Pethealth shall be liable and responsible for any and all
claims made against the Client for infringement of any
patent, copyright, trademark, service mark, trade
secret,or other intellectual property rights by the use of
or supplying of any Deliverable(s) in the course of
performance or completion of,or in any way connected
with providing the services, or the Client's continued
use of the Deliverable(s) hereunder.
i. Pethealth agrees to indemnify,defend, settle,or pay,at
its own cost and expense, any claim or action against
the Client for infringement of any patent, copyright,
trade mark, service mark, trade secret, or other
intellectual property right arising from Client's use of
the Deliverable(s), or any part thereof, in accordance
with this Agreement, it being understood that this
agreement to indemnify, defend, settle or pay shall not
apply if the Client modifies or misuses the
Deliverable(s).So long as Pethealth bears the cost and
expense of payment for claims or actions against the
Client pursuant to this section 8, Pethealth 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; however, Client shall have the right to fully
participate in any and all such settlement, negotiations,
or lawsuit as necessary to protect the Client's interest,
and Client agrees to cooperate with Pethealth in doing
so. In the event Client, for whatever reason, assumes
the responsibility for payment of costs and expenses for
any claim or action brought against the Client for
infringement arising under this Agreement, the Client
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; however, Pethealth shall fully
participate and cooperate with the Client in defense of
such claim or action. Client agrees to give Pethealth
timely written notice of any such claim or action, with
copies of all papers Client may receive relating thereto.
Notwit foregoing, the Client's assumption
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of payment of costs or expenses shall not eliminate
Pethealth's duty to indemnify the Client under this
Agreement. If the Deliverable(s), 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,
Pethealth shall, at its own expense and as Client's sole
remedy, either: (a) procure for Client the right to
continue to use the Deliverable(s); or (b) modify the
Deliverable(s) to make them/it non-infringing, provided
that such modification does not materially adversely
affect Client's authorized use of the Deliverable(s);or(c)
replace the Deliverable(s) with equally suitable,
compatible, and functionally equivalent non-infringing
Deliverable(s)at no additional charge to Client;or(d) if
none of the foregoing alternatives is reasonably
available to Pethealth, terminate this Agreement, and
refund all amounts paid to Pethealth by the Client,
subsequent to which termination Client may seek any
and all remedies available to Client under law.
8.Term and Termination. 8.Termination.
a. Convenience. Either Client or Pethealth may
Each party shall be entitled to terminate this Agreement by terminate the Agreement at any time and for any
providing thirty(30)days prior written notice to the other reason by providing the other party with 30 days
pally, provided,however,that Pethealth shall be entitled written notice of termination.
to terminate this Agreement immediately if the Client shall
commit a breach of this Agreement.Upon termination of b. Breach. If either party commits a material breach
this Agreement for any reason,the Client shall immediately of the Agreement, the non-breaching Party must
cease use of the Application and Pethealth shall provide to give written notice to the breaching party that
the Client a complete duplicate of the Client's Data in describes the breach in reasonable detail. The
Microsoft Access format.The Client may terminate this breaching party must cure the breach ten (10)
Agreement for convenience and without cause or further calendar days after receipt of notice from the non-
liability upon thirty(30)days written notice to Pethealth.In breaching party, or other time frame as agreed to
the event of termination,it is understood and agreed that by the parties. If the breaching party fails to cure
only the amounts due to Pethealth for goods and services the breach within the stated period of time, the
provided up to and including the date of termination,will be non-breaching party may,in its sole discretion,and
due and payable.No penalty will be assessed for Client's without prejudice to any other right under the
termination of this Agreement for convenience. Agreement, law, or equity, immediately terminate
this Agreement by giving written notice to the
breaching party.
C. Fiscal Funding Out. In the event no funds or
insufficient funds are appropriated by Client in any
fiscal period for any payments due hereunder,
Client will notify Pethealth of such occurrence and
the Agreement shall terminate on the last day of
the fiscal period for which appropriations were
received without penalty or expense to the Client
of any kind whatsoever, except as to the portions
of the payments herein agreed upon for which
funds have been appropriated.
d. Duties and Obligations of the Parties. In the event
that the Agreement is terminated prior to the
Expiration Date,Client shall pay Pethealth for
services actually rendered up to the effective date
of termination and Pethealth shall continue to
Pet Point Application Service Agreement Amendment v 1-012018
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DATA MANAGEMENT SYSTEM
provide Client with services requested by Client
and in accordance with the Agreement up to the
effective date of termination.Upon termination of
the Agreement for any reason,Pethealth shall
provide Client with copies of all completed or
partially completed documents prepared under the
Agreement.In the event Pethealth has received
access to Client information or data as a
requirement to perform services hereunder,
Pethealth shall return all Client provided data to
Client in a machine readable format or other
format deemed acceptable to Client.
11.Governing Law and Venue. 11. Law and Venue.
The Agreement and the rights and obligations of the parties
Each party to this Agreement hereby agrees and hereto shall be governed by, and construed in accordance
acknowledges that venue and jurisdiction of any suit,right, with the laws of the United States and state of Texas,
or cause of action arising out of or in connection with this exclusive of conflicts of laws provisions. Venue for any suit
Agreement shall lie exclusively in either Williamson County, brought under the Agreement shall be in a court of
Texas or in the Austin Division of the Western Federal competent jurisdiction in Tarrant County, Texas. To the
District of Texas,and the parties hereto expressly consent extent the Agreement is required to be governed by any
and submit to such jurisdiction.Furthermore,except to the state law other than Texas or venue in Tarrant County,Client
extent that this Agreement is governed by the laws of the objects to such terms and any such terms are hereby deleted
United States,this Agreement shall be governed by and from the Agreement and shall have no force or effect.
construed in accordance with the laws of the State of Texas.
Excluding,however,its choice of law rules.
15.Attorneys'Fees,Penalties,and Liquidated Damages.
To the extent the attached Agreement requires Client to pay
attorneys' fees for any action contemplated or taken, or
penalties or liquidated damages in any amount, Client
objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or
effect.
16.Sovereign Immunity.
Nothing herein constitutes a waiver of Client's sovereign
immunity. To the extent the Agreement requires Client to
waive its rights or immunities as a government entity; such
provisions are hereby deleted and shall have no force or
effect.
17.Indemnity.
To the extent the Agreement requires Client to indemnify or
hold Pethealth or any third party harmless from damages of
any kind or character, Client objects to these terms and any
such terms are hereby deleted from the Agreement and shall
have no force or effect.
18.No Debt.
In compliance with Article 11§5 of the Texas Constitution,it
is understood and agreed that all obligations of Client
hereunder are subject to the availability of funds. If such
funds are not appropriated or become unavailable, Client
shall have the right to terminate the Agreement except for
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those portions of funds which have been appropriated prior
to termination.
19.Amending Agreement Controlling.
If any provisions of the attached Agreement,conflict with the
terms herein, are prohibited by applicable law, conflict with
any applicable rule, regulation or ordinance of Client, the
terms in this Amending Agreement shall control.
20.Immigration Nationality Act.
Client actively supports the Immigration & Nationality Act
(INA) which includes provisions addressing employment
eligibility, employment verification, and nondiscrimination.
Pethealth shall verify the identity and employment eligibility
of all employees who perform work under the Agreement.
Pethealth shall complete the Employment Eligibility
Verification Form (1-9), maintain photocopies of all
supporting employment eligibility and identity
documentation for all employees,and upon request, provide
Client with copies of all 1-9 forms and supporting eligibility
documentation for each employee who performs work under
the Agreement. Pethealth shall establish appropriate
procedures and controls so that no services will be
performed by any employee who is not legally eligible to
perform such services. Pethealth shall provide Client with a
certification letter that it has complied with the verification
requirements required by the Agreement. Pethealth shall
indemnify Client from any penalties or liabilities due to
violations of this provision. Client shall have the right to
immediately terminate the Agreement for violations of this
provision by Seller.
21. No Boycott of Israel.
Pethealth acknowledges that in accordance with Chapter
2270 of the Texas Government Code, City is prohibited from
entering into a contract with a company for goods or services
unless the contract contains a written verification from the
company that it: (1)does not boycott Israel; and (2) will not
boycott Israel during the term of the contract. The terms
"boycott Israel" and "company" shall have the meanings
ascribed to those terms in Section 808.001 of the Texas
Government Code. By signing this Amending Agreement
Pethealth certifies that Pethealth's signature provides written
verification to Client that Pethealth: (1) does not boycott
Israel,-and(2) will not boycott Israel during the term of the
Agreement.
22.Right to Audit.
Pethealth agrees that Client shall, until the expiration of
three (3) years after final payment under the Agreement,
have access to and the right to examine any directly
pertinent books, documents, papers and records of
Pethealth involving transactions relating to the Agreement.
Pethealth agrees that Client shall have access during normal
working hours to all necessary Pethealth facilities and shall
be provided adequate and appropriate workspace in order to
conduct audits in compliance with the provisions of this
section. Client shall give Pethealth reasonable advance
notice of intended audits.
PetPoint Application Service Agreement Amendment v 1-012018
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2. No Other Change
Except as provided in this Amending Agreement,all of the terms and conditions of the Agreement remain unchanged and in full
force and effect and will be read with this Amending Agreement.
3.Terminology
Capitalized terms not defined in this Amending Agreement shall have the meaning as described in the Agreement.
By signing this Amending Agreement,both parties are entering into the Amending Agreement as of the Effective Date and
agree to the terms and conditions outlined within.
PETHEALTH: Nam of Signe
Pethealth Services(USA)Inc. �
fl
Address: Sig Titl
3315 Algonquin Road Suite 450
Rolling Meadows,IL 60008 (��z,�w
Sig �11 M Y//
Telephone: a re:
1-866-630-7387
Signer s Tel hone:
Email:
info@PetPoint.com 1-866-630-7387 ext.
Signer's Fgnail:
CLIENT: Name of Signer:
81111-1 or su9an Alania
Billing Address: Signer's Titl 43si8tant city KNINVer
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Signa,y
Telephone: Signer's Telephone:
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Email: Signer's Email:
APPROVED AS TO FORM AND LEGALITY: Date:
ATTORNEY OFFI DIAL
(CITY
FT.WORTH,TX
PetPoint Application Service Agreement Amendment v 1-012018
Pethealth Services(USA)Inc.PetPoint Application Service Provider Amending Agreement and
Custom Development Statement of Work
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
3V ,O-�--4 4(oliv
S eve Streiffert
Assistant Director, IT Solutions Department
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