HomeMy WebLinkAboutContract 50414 -1- CITY SECRETARYZ:�O IZ
CONTRACT NO. t
Services Overview Initial Term: One Year
HouseholdPopulation and/or Platforms Products
Population: 850,000 Online Collection Calendar
Mobile App Waste Wizard
Agreement secured through National Joint Powers Alliance(NJ PA) Contract 041217-RCS
ReCollect Software Service Agreement
THIS AGREEMENT is dated as of March 20, 2018
BETWEEN:
RECOLLECT SYSTEMS INC., a corporation existing under the laws of British Columbia
and having an address at Suite 528- 3381 Cambie St., Vancouver"BC V5Z 4R3,
Canada.
("ReCollect")
AND:
CITY OF FORT WORTH, a municipality existing under the laws of Texas, USA, and
having an address at 4100 Columbus Trail, Fort Worth TX 76133
(the"Licensee")
WHEREAS the Licensee wishes to subscribe for, and ReCollect wishes to provide, the
ReCollect Services on the terms and conditions set out in this Agreement,the parties agree as
follows:
1. INTERPRETATION
1.1. In this Agreement, capitalized terms not otherwise defined have the meanings set
forth in Appendix nAu.
1.2. All references to dollars or"$" in this Agreement refer to US dollars.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH,TX
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2. RECOLLECT SERVICES
2.1. ReCollect shall provide the ReCollect Services, having the features and
functionality described in Appendix"B".
2.2. ReCollect hereby grants, and Licensee hereby accepts, a limited and
non-exclusive license to use the ReCollect Services during the Term upon the
terms and conditions specified in this Agreement.
3. SERVICE AND MAINTENANCE OBLIGATIONS
3.1. Technical Support.
3.1.1. ReCollect shall provide email support(support@recollect.net) 24 hours
per day, 7 days per week and phone support 12 hours per day (8am to i
8pm Eastern Time) on Business Days to resolve any Service Critical
Incidents. ReCollect shall assign a high priority to any Service Critical
Incidents and shall work to resolve them as expeditiously as reasonably
possible.
3.1.2. ReCollect shall investigate any technical support requests by the
Licensee that are not relating to Service Critical Incidents as soon as
possible and respond by the end of the second Business Day after the
request is made with a resolution or confirmation that the request has
been forwarded to the appropriate person for resolution.
3.2. Testing. ReCollect shall make a test account available to the Licensee for the
purposes of testing the ReCollect Services, and any updates or modifications
thereto, before making the ReCollect Services(or update or modification, as
applicable) publicly available.
3.3. API. ReCollect will give the Licensee reasonable use of the API and will give the
Licensee one year notice in advance of any change to the functionality of the API
that,to the knowledge of ReCollect, may impact the Licensee's use of the API.
3.4. Servers and downtime.
3.4.1. ReCollect shall ensure its servers are monitored at all times, and take
immediate remedial action if its servers are down or use of the ReCollect
Services is otherwise unavailable.
3.4.2. ReCollect shall grant the Licensee one month of free service should the
Service experience downtime of more than 10 hours in a month, other
than planned downtime for reasons of maintenance. ReCollect shall give
the Licensee 72 hours' notice in advance to any planned downtime, and
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such downtime will be scheduled during off-peak times of the week, no
more than 8 hours per month.
3.5. Suspension of access. Upon the Licensee's request, ReCollect will immediately
suspend or disable general access or the access of any specific,persons to the
ReCollect Services, and, upon the Licensee's request, restore such access.
During the Term, and except as otherwise provided in this Agreement, ReCollect
shall not suspend, disable, or restore such access without the Licensee's
consent.
3.6. Text Message Reminders. ReCollect shall enable Text Message Reminders
when requested by the Licensee in writing. Text Message Reminders are subject
to an additional fee as described under Article 5. The Licensee may enable or
disable Text Message Reminders by email request to ReCollect, who will have
two Business Days to comply with any such requests.
4. TERM AND TERMINATION
4.1. The initial term of this Agreement shall be one year, starting on the Effective Date
(the `Initial Term").
4.2. This Agreement shall automatically renew at the expiry of the Initial Term or the
then-current Renewal Term for additional one(1)year periods(each a "Renewal
Term"), unless a party provides written notice of termination to the other party at
least 30 days before the end of the Initial Term or the then-current Renewal
Term, as applicable. The"Term"shall mean the Initial Term and any Renewal
Terms.
4.3. If this Agreement is not renewed before the end of the Term, it will terminate at
the end of the Term.
4.4. If a party is in breach of this Agreement, the other party shall be entitled to give
the breaching party written notice setting out details of the breach and indicating
the other party's intention to terminate this Agreement. Unless the breaching
party cures the breach to the reasonable satisfaction of the other party within 20
Business Days of the breaching party's receipt of the notice of the breach,this
Agreement will terminate as of the close of business on the 20th such Business
Day.
4.5. Either party may terminate this Agreement immediately by written notice to the
other party:
(a) if the terminating party reasonably deems such termination to be
necessary in order to comply with applicable laws; or
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(b) if the other party becomes insolvent or bankrupt, or if any
proceeding is commenced by a person in good faith seeking to
adjudicate the other party a bankrupt or insolvent or with respect
to the other parry's liquidation, dissolution,winding-up or the
appointment of a receiver in respect of the other party.
4.6. No termination of this Agreement will affect any rights, remedies or liabilities of
either party that may have accrued before the date of termination.
5. FEES AND PAYMENT TERMS
5.1. Fees. The Licensee will pay the following fees, plus any applicable Taxes,for the
ReCollect Services during the Term:
(a) subscription fee of$19,931.12 per year(the"Subscription Fee");
and
(b) text message fee of$0.50 per year per SMS Subscriber(the"Text
Message Fee")
the Subscription Fee and the Text Message Fee are collectively referred to as
the"Fees". Fees are based on ReCollect Services purchased and not actual
usage. Payment obligations are non-cancellable and Fees paid are
non-refundable. Quantities purchased cannot be decreased during the Term.
5.2. Inflation.The Fees will increase on each one year anniversary of the Effective
Date by the rate of CPI inflation as defined by the United States Bureau of Labor
Statistics.
5.3. Payment terms. The Licensee will pay the Fees annually in advance to
ReCollect upon execution of this Agreement and on each one year anniversary of f
the Effective Date. Such payments will be due 30 days following the date of
ReCollect's invoice. The Licensee is responsible for providing ReCollect with
complete and accurate billing and contact information and notifying ReCollect of
any changes to such information.
When sending invoices or contacting the Licensee regarding renewals, ReCollect
should contact:
Attention: Carola Scharlach
Telephone: 817-392-5385
Email: Carola.Scharlach@fortworthtexas.gov
I
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Address. 818 Missouri Avenue
Fort Worth, TX 76104
5.4. Taxes. The Fees are exclusive of all taxes, levies, duties or similar governmental
assessments of any nature, including, for example, value-added, sales, use or
withholding taxes, assessable by any jurisdiction whatsoever(collectively,
"Taxes"). The Licensee is responsible for paying all Taxes associated with its
purchase of the ReCollect Services. If ReCollect has the obligation to pay or
collect Taxes for which the Licensee is responsible under this Section 5.3,
ReCollect will invoice the Licensee for the amount of the Taxes and the Licensee
will pay the amount to ReCollect unless it first provides ReCollect with a valid tax
exemption certificate authorized by the appropriate taxing authority.
5.5. Overdue charges. ReCollect has the right to apply an overdue fee of 1.5% per
month (equivalent to 19.6% per year)to accounts which are not paid by the due
date.
5.6. Suspension of service. If any amounts owing by the Licensee are 30 or more
days overdue, ReCollect may, without limiting its other rights and remedies,
suspend its provision of the ReCollect Services to the Licensee until such
amounts are paid in full.
6.7. Payment Disputes. ReCollect will not exercise its rights under Sections 5.5 and
5.6 if the Licensee is disputing the applicable charges reasonably and in good
faith and is cooperating diligently to resolve the dispute.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. Title to the software comprising the ReCollect Services (excluding any Licensee
Content included therein) shall at all times remain with the Licensor. The
Licensee acknowledges that the ReCollect Services and ReCollect Content are
proprietary to ReCollect and that all rights thereto are owned by ReCollect.The
Licensee further acknowledges that the ReCollect Services and ReCollect
Content contain trade secrets of ReCollect and that the ReCollect Services and
ReCollect Content are protected by Canadian and international copyright and
other intellectual property laws and treaties. Under no circumstances will a copy
of the software comprising the ReCollect Services be provided to the Licensee.
The Licensee shall not reverse engineer or directly or indirectly allow or cause a
third party to reverse engineer the whole or any part of the ReCollect Services.
6.2. Licensee represents and warrants that it either owns or has permission to use the
Licensee Content, and it hereby grants ReCollect a limited and non-exclusive
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license to use the Licensee Content during the Term in connection with the
Recollect Services.
6.3. Recollect represents and warrants that it either owns or has permission to use
the Recollect Content, and it hereby grants the Licensee a limited and
non-exclusive license to use the Recollect Content during the Term in
connection with the Recollect Services.
6.4. Recollect further represents and warrants that the provision of the Recollect
Services will not infringe any third party intellectual property rights enforceable in
Canada or the United States, provided that if Recollect believes or it is
determined that any part of the software comprising the Recollect Services has
or may have violated a third party's Intellectual Property Rights, Recollect may
choose to either modify the Recollect Services to be non-infringing (while
substantially preserving their utility) or obtain a license to allow for continued use,
or if these alternatives are not commercially reasonable, Recollect may terminate
this Agreement without penalty other than to refund any portion of the Fees
attributable to the period following the date of such termination.
6.6. The Licensee hereby grants Recollect a worldwide, perpetual, irrevocable,
royalty-free licence to use and incorporate into the Recollect Services (and
services provided to third parties by Recollect) any suggestion, enhancement
request, recommendation, correction or other feedback provided by the Licensee
or its Representatives relating the Recollect Services.
7. DATA SECURITY AND PRIVACY
7.1. Data Ownership
7.1.1. The Licensee shall retain all right, title and interest in and to the Licensee
Data and Aggregate Data. Recollect shall have the right to collect and
analyze data and other information relating to the provision, use and
performance of various aspects of the Recollect Services and related
systems and technologies (including, without limitation, data obtained as
a result of analyzing the Licensee Data, Aggregate Data and data derived
therefrom), and Recollect will be free to use such information and data to
provide the Recollect Services,to improve and enhance the Recollect
Services and for other development, diagnostic and corrective purposes
for its internal business use. In no event shall Recollect otherwise
reproduce, sell, disclose, publicize or exploit Licensee Data or Aggregate
Data without the prior written consent of the Licensee. No rights or
licenses to use Aggregate Data are granted except as expressly set forth
herein.
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7.2. ReCollect's obligations.
7.2.1. In the course of providing the ReCollect Services, ReCollect may collect,
use, store, retain, transfer, disclose and/or dispose of("Handle"or
"Handling") Personal Information.
7.2.2. ReCollect's Handling of Personal Information is subject to its"Terms of
Use" (https.//recollect.net/terms) and"Privacy Policy"
(https:Hrecollect.net/privacy) in effect from time to time, as posted to its
website.
7.2.3. ReCollect shall not Handle Personal Information except in compliance
with applicable privacy laws. ReCollect is solely responsible for the use of
Personal Information by its Representatives, and shall ensure that all
such persons comply with applicable laws, including applicable privacy
laws, regarding the Handling of Personal Information.Without limiting the
generality of the foregoing:
(a) ReCollect shall use industry accepted practices to protect
Personal Information in its custody or control against theft, loss
and unauthorized use or disclosure.
(b) Whenever ReCollect transfers Personal Information over the
internet, it will employ appropriate cryptographic protocols such as
Transport Layer Security(TLS) encryption.
(c) ReCollect shall keep confidential all Personal Information and will
not disclose Personal Information to third parties(which for clarity
does not include its employees and agents,to the extent such
persons require such Personal Information for the purpose of
ReCollect's provision of the ReCollect Services), except as may
be required by law.
(d) ReCollect will notify the Licensee at the first reasonable
opportunity, and in any event within 24 hours of becoming aware
that any Personal Information has been stolen, lost, or accessed
by unauthorized persons.
7.2.4. Within 10 Business Days of the termination of this Agreement, ReCollect
shall provide the Licensee a copy of all Personal Information and written
confirmation of the deletion of all Personal Information from all servers
under its control.
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7.3. Licensee's Obligations
7.3.1. The Licensee shall not Handle Personal Information except in compliance
with applicable privacy laws.The Licensee is solely responsible for the
use of Personal Information and the ReCollect Services by its
Representatives, and shall ensure that all such persons comply with
applicable laws, including applicable privacy laws, regarding the Handling
of Personal Information.
7.3.2. The Licensee shall take all reasonable measures to ensure that the
ReCollect Services are protected against use or access by unauthorized
persons.
7.3.3. The Licensee shall notify ReCollect at the first reasonable opportunity,
and in any event within 24 hours if it becomes aware that any Personal
Information accessible through the ReCollect Services is stolen, lost, or
accessed by unauthorized persons.
7.3.4. The Licensee will not use the ReCollect Services to store or transmit(i)
unauthorized, infringing, libelous, or otherwise unlawful or tortious
material, (ii) material in violation of third-party privacy rights, or(iii) code,
files, scripts, agents or programs intended to do harm, including,for
example, computer viruses or malware. Licensee acknowledges that the
ReCollect Services are a passive conduit for the transmission of Licensee
Content and ReCollect shall have no liability for any errors or omissions
or for any material described in clauses (i)through (iii) of the previous
sentence, or for any losses, damages, claims, suits or other actions
arising out of or in connection with any Licensee Content sent, accessed,
posted or otherwise transmitted via the ReCollect Services.
7.3.6. The Licensee's access to the ReCollect Services is subject to ReCollect's
reasonable rules and restrictions in effect from time to time. ReCollect will
provide the Licensee notice in writing of any such rules and restrictions or
changes thereto.
8. CONFIDENTIALITY
8.1. Required Disclosure by Licensee. The Licensee may disclose this Agreement
and the terms hereof if and to the extent required by law. If permitted by law, the
Licensee agrees to give ReCollect prior notice of any such disclosure.
8.2. Protection of Confidential Information. Neither party will use or disclose any
Confidential Information of the other party except 4s expressly permitted by this
Agreement. Each party will direct its Representatives to comply with this Section
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8.2 and will be responsible for any breach of this Section 8.2 by its
Representatives.
9. REPRESENTATIONS AND WARRANTIES
9.1. Representations and Warranties. ReCollect represents and warrants that it will
use commercially reasonable efforts to provide the ReCollect Services. Each
party represents and warrants that it has validly entered into this Agreement and
has the legal capacity to do so. Each party represents and warrants that it holds
all licenses, rights, and authority necessary to enter into and perform its
obligations under this Agreement. Except as expressly provided in Section 6 and
in this Section 9.1, neither party makes any representation or warranty of any
kind, whether express, implied, statutory or otherwise, and each party specifically
disclaims all implied warranties, including any implied warranty of
merchantability, fitness for a particular purpose or non-infringement,to the
maximum extent permitted by applicable law.
9.2. Disclaimer. The ReCollect Services are provided on an "as-is"and "as available"
basis. ReCollect does not warrant that the ReCollect Services will operate error
free or without interruption.Without limiting the foregoing, in no event shall
ReCollect have any liability to the Licensee or any third party for personal injury
(including death) or property damage arising from failure of the ReCollect Service
to deliver an electronic message, however caused and under any theory of
liability, even if ReCollect has been advised of the possibility of such damage.
10. LIMITATION OF LIABILITY
10.1. Mutual limitation of liability. Neither party's liability with respect to this
Agreement will exceed one million dollars ($1,000,000). The above limitation
applies whether an action is under contract, tort(including without limitation,
negligence and strict liability), or any other legal theory.
10.2. Exclusion of consequential and related damages. In no event shall ReCollect
be liable to the Licensee or any third party for lost profits, lost revenues, lost
savings, or incidental, consequential, indirect, punitive or special damages
howsoever arising, including without limitation arising out of the operation of or
inability to operate the ReCollect Services.
10.3. Unavoidable Events. No party will be regarded as being in default in
performance of any obligations under this Agreement, or liable for any damages,
if such party is delayed or hindered in the performance of, or unable to perform,
such obligations, or such damages arise, as a consequence of an Unavoidable
Event.
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11. APP STORE ACCOUNT MANAGEMENT
11.1. Acknowledgement. Licensee acknowledges that the ReCollect Services will
include publishing one or more applications on Licensee's behalf on Apple, Inc.'s
App Store and/or Google Inc.'s Google Play service(the Apple, Inc.App Store
and Google Play are referred to collectively as the"App Stores").This Section
13 sets forth the parties'mutual agreement relating to Licensee's Apple
Developer Account for Apple, Inc.'s App Store and Licensee's Google Developer
Account for Google Inc.'s Google Play Console service (such developer accounts
are referred to as "Developer Accounts").
11.2. Licensee obligations:
11.2.1. If Licensee is not already enrolled with an account in the Apple Developer
Program, it will promptly enroll in the Applp Developer Program and open
an account under its own name. If Licensee is not already enrolled with a
Developer Account for the Google Play Console, it will promptly register
such a Developer Account under its own name.
11.2.2. Licensee will add ReCollect to its"development team"for its Developer
Account for the Apple Developer Program, and will add ReCollect as an
additional user for its Developer Account for the Google Play Console, in
each case with full access to all permissions, including to create, edit, and
publish apps, and reply to reviews, to the extent permitted under Apple,
Inc. or Google Inc. policies, as applicable. Licensee will maintain
ReCollect's status on its Developer Accounts for both App Stores during
the Term.
11.2.3. If and to the extent required under Apple, Inc. or Google Inc. policies,
Licensee will,with the assistance of ReColect, submit one or more
applications and/or revised versions of applications for publication on
each of the App Stores upon ReCollect's request from time to time, but
only as may be reasonably required in order for ReCollect to provide the
ReCollect Services.
11.2.4. Licensee hereby grants ReCollect the authority to access and use its
Developer Accounts only as may be reasonably required in order for
ReCollect to provide the ReCollect Services, including as to the following:
11.2.4.1. to submit applications developed by ReCollect, and/or revised
versions of such applications,from time to time, for review and
publication on the App Stores, under the Developer Accounts;
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11.2.4.2. to download data and reports from Apple, Inc. and Google Inc.
relating to applications developed by ReCollect(including as to the
number of downloads each day), so that ReCollect can provide
metrics and reports to Licensee; and
11.2.4.3. to review and respond, in Licensee's name and on its behalf, to
reviews posted by users of applications developed by ReCollect,for
the purpose of providing technical support or assistance to end
users.
11.3. ReCollect obligations:
11.3.1. ReCollect will use its access to the Licensee's Developer Accounts only
as may be reasonably required in order for ReCollect to provide the
ReCollect Services.
11.3.2. ReCollect will use commercially reasonable efforts to maintain the
security of the account that it will use to access Licensee's Developer
Accounts, including by maintaining a strong password with two-factor
authentication enabled,which will be tightly controlled and only available
to a minimal number of ReCollect staff.
11.3.3. ReCollect will not use or disclose any confidential information accessible
through Licensee's Developer Accounts that is unrelated to the
administration of the applications developed and maintained by
ReCollect.
11.3.4. ReCollect will provide the Licensee with such information and assistance
as may be reasonably required in order for the Licensee to comply with its
obligations under this Section 13.
11.4. At the end of the Term, Licensee may remove ReCollect from its Developer
Accounts.
12. GENERAL
12.1. Notices. Any notice required or permitted to be given to the parties by this
Agreement or by law may be delivered to the intended recipient at its address or
e-mail address at:
In the case of ReCollect:
ReCollect Systems Inc.
Suite 528-3381 Cambie St.
Vancouver, BC V5Z 4R3, Canada.
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Attention: Kathryn Paulson
Telephone: 1-888-291-0604 x304
Email: contracts@recollect.net
In the case of the Licensee:
City of Fort Worth
4100 Columbus Trail
Fort Worth TX 76133
Attention: Christian Harper
Telephone: 817-392-2488
Email: Christian.Harper@fortworthtexas.gov
Any party may change its address for notice from time to time by notice given in
accordance with the foregoing, and any subsequent notice shall be sent to such
party at its changed address. If the Licensee has any issues with insurance
renewal, please contact insurance@recollect.net.
12.2. Assignment. The Licensee may not transfer or assign its rights and obligations
under this Agreement without obtaining ReCollect's prior written consent.
12.3. Amendments and Waivers. This Agreement may not be modified or amended
except by written agreement. No provision of this Agreement may be waived
except in writing by the party providing the waiver. No failure or delay by either
party in exercising any right under this Agreement will constitute a waiver of that
right.
12.4. Entire Agreement.This Agreement constitutes the entire agreement and
understanding between the parties with respect to the matters dealt with herein.
All previous agreements, understandings, and representations,whether written or
oral, between the parties have been superseded by this Agreement. For greater
certainty,the Licensee warrants that it has not relied on any representation made
by ReCollect which has not been stated expressly in this Agreement, or upon any
descriptions, illustrations or specifications contained in any document including
publicity material produced by ReCollect.
12.5. Governing Law.This Agreement is governed by and will be interpreted and
construed in accordance with the laws of the State of Texas and the federal laws
of the United States of America applicable therein. Each party submits to the
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jurisdiction of the courts of Texas in any action or proceeding arising out of or
relating to this Agreement and agrees that all claims in respect of any such action
or proceeding will exclusively be heard and determined in such courts.
12.6. Order of precedence. In the event of any conflict between this Agreement
(excluding Appendix"B")and the information contained in Appendix "B°, the
order-of precedence shall be(1)this Agreement(excluding Appendix"B")and (2)
Appendix°B".
12.7. Relationship of the parties. The parties are independent contractors. This
Agreement does not create a partnership,joint venture, agency, fiduciary or
employment relationship between the parties.
12.8. Severability.Any provision of this Agreement which is invalid or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective only to the extent of
such invalidity or unenforceability and shall be severed from the balance of this
Agreement without invalidating or affecting the remaining provisions of this
Agreement in that or any other jurisdiction, which remaining provisions shall
continue in full force and effect.
12.9. Execution. This Agreement may be executed in counterparts by the respective
parties, each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement,
provided that this Agreement shall be of no force and effect until the counterparts
are exchanged. Transmission of an executed signature page by email or other
electronic means is as effective as a manually executed counterpart of this
Agreement
[Signature page follows]
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IN WITNESS WHEREOF ReCollect and the Licensee have executed this Agreement as of the
Effective Date.
RECOLLECTTEMS INC.
Per:
Name:
Title: �Q�?02 0�F 0;i�77owS-
5"S
CITY OF ORT O H
Per:
Name: S�
Title: ( ?e.yv-
v; ZAAG d b
APPROVED AS TO FORM AND LEGALITY=
O-� ATToRNEVY St`a`�° t
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH,TX
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APPENDIX "A"
DEFINITIONS
' In this Agreement:
"Agreement"means this ReCollect Software Service Agreement including the
appendices hereto.
"API"means ReCollect's application programming interface, which may be used to
interact with the ReCollect Services from third-party software applications.
"Business Day" means any day of the year, other than a Saturday, Sunday or statutory
holiday in Vancouver, British Columbia.
"Confidential Information" means all information disclosed by a party(the "Disclosing
Party")to the other party(the"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. ReCollect's
Confidential Information includes the ReCollect Services, and each party's Confidential
Information includes the terms and conditions of this Agreement(including pricing), as
well as business and marketing plans,technology and technical information, product
plans and designs and business processes disclosed by such party. However,
Confidential Information does not include any information that(i) is or becomes generally
known to the public without breach of any confidentiality obligation owed to the
Disclosing Party; (ii)was known to the Receiving Party prior to its disclosure by the
Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii)is
received from a third party without breach of any obligation owed to the Disclosing Party;
or(iv)was independently developed by the Receiving Party.
"Licensee Data" means all proprietary and confidential data provided by the Licensee
for use, storage, or access by ReCollect in the course of providing the ReCollect
Services, and/or any data created or made available to ReCollect by end users of the
ReCollect Services; and
"Aggregate Data" refers to Licensee Data with personally identifiable information
removed, including the names, addresses, and contact information (e.g. email
addresses, phone numbers) of any end users of the ReCollect Services.
"Effective Date" means the date written on the first page of this Agreement.
"Initial Term"has the meaning given in Section 4.1.
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"Intellectual Property"means any domestic or foreign intellectual property, registered
or unregistered, including patents, copyrights, designs,trade-marks, trade names,
business names, corporate names, inventions,trade secrets, proprietary and non-public
business information, Confidential Information, know-how, methods, processes,
technology, data, schematics, content, specifications, graphics, photos, logos, artwork
and documentation relating to any of the foregoing.
"Licensee Content"means (i) all Intellectual Property created, acquired, or licensed by
the Licensee or its Representatives and provided to ReCollect or distributed via the
ReCollect Services; and (ii) any modifications, enhancements, adaptations or derivative
works of any Licensee Content.
"Fees"has the meaning given in Section 5.1.
"Personal Information" means any information about an identifiable individual collected
by ReCollect in the course of providing the ReCollect Services (other than the name, title
and business contact information of the Licensee's Representatives).
"ReCollect Content" means any Intellectual Property created, acquired, or licensed by
ReCollect and included in the ReCollect Services, other than Licensee Content.
"ReCollect Services" means the services provided to Licensee as described in
Appendix"B", and includes any updates or other modifications thereto.
"Renewal Term"has the meaning given in Section 4.2.
"Representative"means,with respect to a party, any employee, contractor(excluding
the other party), agent or representative of a party.
"Service Critical Incidents"means any defect in the ReCollect Services that
significantly impairs the Licensee's ability to use the ReCollect Services.
"SMS Subscriber"means an end user of the ReCollect Services who has subscribed for
Text Message Reminders.
"Subscription Fee" has the meaning given in Section 5.1(a).
"Taxes" has the meaning given in Section 5.4,
"Term"has the meaning given in Section 4.2.
"Text Message Fee"has the meaning given in Section 5.1(b). 1
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"Text Message Reminders"means text message(SMS) based reminders sent through
the ReCollect Services.
"Unavoidable.Event"means, in respect of a party, any event beyond the reasonable
control of such party, including acts of God, flood, labour disturbances, earthquakes,
storms, fire, lightning, epidemic,war, riots, civil disturbance or disobedience, restraint by
government body, or default by a third party internet, infrastructure or service provider.
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APPENDIX "B"
RECOLLECT SERVICES
ReCollect's Platform service includes the following features:
Collection Calendar
Schedule look-up tool:
o Residents can search for collection schedule by address.
o Predictive search allows for various address formats
o Address aliasing, so that old street names or streets with multiple names, will
always point to the correct address
o 'Schedules can shift to account for holidays and can handle any level of
complexity.
o Schedules can show multiple and customizable streams such as recycling, yard
waste, organics, or christmas tree collection
o Schedules can display non-collection events such as household hazardous
waste days.
o Schedules can be specific to the address level-allowing cities to show different
collection schedules or options for residential, multi-family and/or commercial
addresses
o Addresses searched that are in neighbouring municipalities can generate a
custom message with hyperlink directing those users back to the responsible
authority.
• Reminders and print calendars:
o Residents can sign up for collection day reminders via email, Twitter, Text
Message, or automated phone call, or embed the schedule into their Outlook,
iCal or Google Calendar.
o Reminders shift to account for holidays, and remind residents only about what is
being picked up that week, from recycling bins, to christmas trees.
o Free printer-friendly collection calendars customized for each resident's address.
o Custom branding on notifications: use your logo, background image, color palette
to shape the look and feel and reinforce your brand.
o Add educational content to reminders to let residents know about upcoming
events, common mistakes or other informative content that can help increase
recycling, lower support calls and reduce contamination.
• Report a Problem
o Let residents report waste related problems such as missed collections, broken
or missing garbage bins
o Entirely customizable list.
o Integrates with other solutions(see data & integration section below).
• Admin Dashboard
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o Activity& Reporting dashboard-get detailed stats about how your residents are
using ReCollect.
o Easily update the collection schedule anytime with drag &drop interface.
o Add new streams or events.
o Add educational content to garbage day reminders at any time-let residents
know about upcoming events, common mistakes, or other important information.
o Send service interruption messages-reduce complaints and call volumes by
letting residents know immediately about service interruptions due to weather or
other problems.
o Monthly activity report emailed to staff, or check the live dashboards anytime.
Standard Waste Wizard
• Enable residents to easily search for how to dispose of hundreds of different materials
(one easy step usage, and one set of rules for all residents).
• Admin Dashboard-city administrators can, at any time:
o Access Activity& Reporting dashboard-get detailed stats about:
■ usage
■ most searched for items
■ items searched for that are not in the wizard (so they can be added)
o Update the wizard, including:
■ Adding or editing items, setting their stream (trash, recycling, depot, bulk
collection, etc.)
■ Set special instructions for each item.
is Include depots, landfills and drop off locations, customize content to
include map and location results, hours of opening.
■ Add"synonyms"to items so that local variations in terminology, along with
common spelling mistakes and typos will give the correct result.
o Download a Monthly activity report, or have it automatically emailed to staff.
Embeddable widget
• Embed the calendaring,waste wizard and report-a-problem tools on multiple web pages
and websites, including your Facebook page, hauler's website, neighborhood/community
websites, etc.
• Responsive design--widget adapts mobile web browsers giving users the best
experience for their screen size.
• White labeled: widget uses your color palette and fonts to match the look and feel of
your website.
Mobile app
• Free mobile apps with the calendaring, waste wizard and report-a-problem tools
available to residents in iTunes App Store and Android Play Store.
• Native!Phone and native Android apps, meaning they look sharp and are intuitive to
users.
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• White-Labeled: Custom branding on mobile apps allows you to use your logo,
background image, color palette, and messaging to shape the look and feel, and
reinforce your brand.
Data and Integration
Export your data anytime.
• Import your data from any format(CSV, KML, SHP, XML, PDF, TRON ...)
• Data updates can be automated for always up-to-date data.
• Drag and drop tools that make it easy for anyone to update garbage schedules.
• Integration with help desk systems/311 systems--many options for incorporating related
service requests from residents.
Accessibility
• Exceeds WCAG 2.0 Level AA and Section 508 compliance-ReCollect meets all E
regulatory and legal accessibility compliance requirements for users with disabilities.
• ReCollect works for all your residents, including those without computers or
smartphones, those who have only landlines.
Customer Engagement
• Targeted education and campaign messaging-create your own or use seasonal
templates that add content to existing reminders. No need to deluge residents-- let their
weekly reminder sere as a newsletter.
• Segment custom messages by geography/neighborhoods-each collection route can
receive distinct custom messages.
• Emergency messaging-immediately notify residents of trailed pickups due to weather,
mechanical breakdown etc.
• Support multiple languages-deploy the calendar widget in Spanish, Chinese, Korean
and French.
Support
• Dedicated Customer Success representative assigned to your account available to
answer questions, offer support and share best practices
• Access to our expertise and best practices around marketing your ReCollect tools to
residents and maximizing their impact
• Access to our webinars where cities share best practices around using ReCollect
• 24/7 uptime and performance monitoring.
• 12/7 email support.
• Phone support for integration issues.
• We ensure ongoing compatibility for all popular browsers, devices and platforms.
• Residents and staff have direct access to our Customer Success Department in the
event of technical difficulties.
• Gain instant access to new features, patches and fixes ao they are developed at no
extra cost.
ADDENDUM TO SOFTWARE SERVICE AGREEMENT
BETWEEN
THE CITY OF FORT WORTH
AND
RECOLLECT SYSTEM INC.
This Addendum to Software Service Agreement ("Addendum") is entered into by and
between the ReCollect System Inc. ("Seller") and the City of Fort Worth ("City"), collectively
the"parties",for a purchase of licenses.
The Contract documents shall include the following:
1. The Software Service Agreement; and
2. This Addendum.
Notwithstanding any language to the contrary in the attached Software Service
Agreement (the "Agreement"), the Parties hereby stipulate by evidence of execution of this
Addendum below by a representative of each party duly authorized to bind the parties hereto,
that the parties hereby agree that the provisions in this Addendum below shall be applicable to
the Agreement as follows:
1. Term. The Agreement shall become effective upon the signing of the Agreement
(the "Effective Date") and shall expire one (1) year after the Effective Date (the Expiration
Date"), unless terminated earlier in accordance with the provisions of the Agreement or
otherwise extended by the parties. The Agreement may be renewed for number of renewals at
City's option, each a "Renewal Term." City shall provide Seller with written notice of its intent
to renew at least thirty(30)days prior to the end of each term.
2. Termination.
a. Convenience. Either City or Seller may terminate the.Agreement at any
time and for any reason by providing the other party with 30 days written notice of
termination.
b. Breach. If either party commits a material breach of the Agreement, the
non-breaching Party must give written notice to the breaching party that describes the
breach in reasonable detail. The breaching party must cure the breach ten (10) calendar _
days after receipt of notice from the non-breaching party, or other time frame as agreed to
by the parties. If the breaching party fails to cure the breach within the stated period of
time, the non-breaching party may, in its sole discretion, and without prejudice to any
other right under the 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 City in any fiscal period for any payments due hereunder, City will
notify Seller of such occurrence and the Agreement shall terminate on the last day of the
Addendum to Software License Agreement Page 1 o f 6
fiscal period for which appropriations were received without penalty or expense to the
City 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, City shall pay Seller for services actually
rendered up to the effective date of termination and Seller shall continue to provide City
with services requested by City and in accordance with the Agreement up to the effective
date of termination. Upon termination of the Agreement for any reason, Seller shall
provide City with copies of all completed or partially completed documents prepared
under the Agreement, In the event Seller has received access to City information or data
as a requirement to perform services hereunder, Seller shall return all City provided data
to City in a machine readable format or other format deemed acceptable to City.
3. LIABILITY AND INDEMNIFICATION.
a. LIABILITY-SELLER SHALL BE LIABLE AND RESPONSIBLE FOR
ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR
PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL
PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR
ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT
ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL
MISCONDUCT OF SELLER, ITS OFFICERS, AGENTS, SERVANTS
OR EMPLOYEES.
b. INDEMNIFICATION - SELLER HEREBY COVENANTS AND
AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE
CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES,
FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF
ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED,
FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING
ALLEGED DAMAGE OR LOSS TO SELLER'S BUSINESS, AND ANY
RESULTING LOST PROFITS) PERSONAL INJURY, INCLUDING
DEATH, TO ANY AND ALL PERSONS, AND DAMAGES FOR
CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
TO THE EXTENT CAUSED BY THE ACTS OR OMISSIONS OF
SELLER, ITS OFFICERS, AGENTS, SUBCONTRACTORS,
SERVANTS OR EMPLOYEES.
c. INTELLECTUAL PROPERTY INFRINGEMENT.
i. Seller 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
Addendum to Software License Agreement Page 2 of 6
"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.
ii. Seller shall be liable and responsible for any and all claims made
against the City 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 City's continued use
of the Deliverable(s)hereunder.
iii. Seller agrees to indemnify, defend, settle, or pay, at its own cost
and expense, including the payment of attorney's fees, any claim
or action against the City for infringement of any patent,
copyright, trade mark, service mark, trade secret, or other
intellectual property right arising from City'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 City modifies or misuses
the Deliverable(s).So long as Seller bears the cost and expense of
payment for claims or actions against the City pursuant to this
section 8, Seller 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,
City shall have the right to fully participate in any and all such
settlement, negotiations, or lawsuit as necessary to protect the
City's interest, and City agrees to cooperate with Seller in doing
so. In the event City, for whatever reason, assumes the
responsibility for payment of costs and expenses for any claim or
action brought against the City for infringement arising under this
Agreement, the City 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, Seller shall fully participate and cooperate with
the City in defense of such claim or action. City agrees•to give
Seller timely written notice of any such claim or action,with copies
of all papers City may receive relating thereto. Notwithstanding
the foregoing, the City's assumption of payment of costs or
expenses shall not eliminate Seller's duty to indemnify the City
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, Seller shall, at its own expense and as
Addendum to Software License Agreement Page 3 of 6
City's sole remedy, either: (a) procure for City 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 City'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 City; or (d) if none of the
foregoing alternatives is reasonably available to Seller, terminate
this Agreement, and refund all amounts paid to Seller by the City,
subsequent to which termination City may seek any and all
remedies available to City under law. SELLER'S OBLIGATIONS
HEREUNDER SHALL BE SECURED BY THE REQUISITE
INSURANCE COVERAGE AND AMOUNTS SET FORTH IN
SECTION 10 OF THIS AGREEMENT.
4. Attor�peys' Fees, Penalties, and Liquidated Dg0ges. To the extent the attached
Agreement requires City to pay attorneys' fees for any action c9ntemplated or taken,or penalties
or liquidated damages in any amount, City objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect.
5. Law and Venue. The Agreement and the rights and obligations of the parties
hereto shall be governed by, and construed in accordance with the laws of the United States and
state of Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the
Agreement shall be in a court of competent jurisdiction in Tarrant County, Texas. To the extent
the Agreement is required to be governed by any state law other than Texas or venue in Tarrant
County, City objects to such terms and any such terms are hereby deleted from the Agreement
and shall have no force or effect.
6. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign
immunity. To the extent the Agreement requires City to waive its rights or immunities as a
government entity; such provisions are hereby deleted and shall have no force or effect.
7. Indemnily. To the extent the Agreement requires City to indemnify or hold Seller
or any third party harmless from damages of any kind or character, City objects to these terms
and any such terms are hereby deleted from the Agreement and shall have no force or effect.
8. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the availability of
funds. If such funds are not appropriated or become unavailable, City shall have the right to
terminate the Agreement except for those portions of funds which have been appropriated prior
to termination.
9. Confidential Information. City is a government emtity under the laws of the State
of Texas and all documents held or maintained by City are subject to disclosure under the Texas
Public Information Act. To the extent the Agreement requires that City maintain records in
violation of the Act, City hereby objects to such provisions and such provisions are hereby
f
Addendum to Software License Agreement Page 4 of 6
deleted from the Agreement and shall have no force or effect. In the event there is a request for
information marked Confidential or Proprietary, City shall promptly notify Seller. It will be the
responsibility of Seller to submit reasons objecting to disclosure. A determination on whether
such reasons are sufficient will not be decided by City, but by the Office of the Attorney General
of the State of Texas or by a court of competent jurisdiction.
10. Addendum 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 City,the terms in this Addendum shall control.
11. Immigration Nationality Act. City actively supports the Immigration &
Nationality Act(INA)which includes provisions addressing employment eligibility,employment
verification, and nondiscrimination. Seller shall verify the identity and employment eligibility of
all employees who perform work under the Agreement. Seller shall complete the Employment
Eligibility Verification Form(I-9),maintain photocopies of all supporting employment eligibility
and identity documentation for all employees, and upon request, provide City with copies of all
I-9 forms and supporting eligibility documentation for each employee who performs work under
the Agreement. Seller 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. Seller shall
provide City with a certification letter that it has complied with the verification requirements
required by the Agreement. Seller shall indemnify City from any penalties or liabilities due to
violations of this provision. City shall have the right to immediately terminate the Agreement for
violations of this provision by Seller.
12. No Boycott of Israel. Seller 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 Addendum, Seller certifies that Seller's
signature provides written verification to City that Seller: (1) does not boycott Israel; and (2)
will not boycott Israel during the term of the Agreement.
13. Right to Audit. Seller agrees that City 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 Seller involving transactions relating to the
Agreement. Seller agrees that City shall have access during normal working hours to all
necessary Seller facilities and shall be provided adequate and appropriate workspace in order to
conduct audits in compliance with the provisions of this section. City shall give Seller reasonable
advance notice of intended audits.
(signature page follows)
Addendum to Software License Agreement Page 5 of 6
Executed this the day of IK,2018.
CITY: `�—
City of Fort Worth Contract Compliance Manager:
By signing 1 acknowledge that 1 am the person
-rwponsible•for4he•menitoring and administration
of this contract,including ensuring all performance
By: 1/v and reporting requirements.
Name:
Title: Assistant City Manager
Date: IX By: A-e .
_
I Name:
Approval Recommended: Title:
Approved as to Form and Legality:
By: 1�44 N
Name.
Title: S �� By: Z'-�A
e: John B. trong
Attest: Title: Assis nt City Attorney
Contract Authorization:
M&C:
By: �,.
ame:
Title: i y Secretary
SELLER: �` •. 'ry _
Recollect S e c
By:
Name: L,vkt art
Title: D,rtc,� WQ�irr.`tfi's�+S
Date: !8= 09 —Off
i
JFF1
3AL RECORD
Addendum to Software License Agreenictit C�*IJ 6 TARY
FT. WORTH,TX