HomeMy WebLinkAboutContract 53028 CTACN
NOV6E CITY
SECRETARY
2G19 AGREEMENT BETWEEN
c,c orSCRT Lv°Rrx THE CITY OF FORT WORTH
NARY AND
DEMCO SOFTWARE
This Agreement("Agreement") is entered into by and between Demco Software ("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 Master License Agreement; and
2. This Addendum.
Notwithstanding any language to the contrary in the attached Master License 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)years 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 3 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 thirty (30) 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 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. —
FFIIUA 9
CITY SECRETARY
Addendum FTC W p
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. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated 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.
4. Law and Venue. INTENTIONALLY DELETED.
5. Insurance. The City is a governmental entity under the laws of the state of Texas
and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self-Insurance by
Governmental Units," is self-insured and therefore is not required to purchase insurance. To the
extent the Agreement requires City to purchase insurance, City objects to any such provision, the
parties agree that any such requirement shall be null and void and is hereby deleted from the
Agreement and shall have no force or effect. City will provide a letter of self-insured status as
requested by Seller.
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. Limitation of Liability and Indemnity. To the extent the Agreement, in any way,
limits the liability of Seller or 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 entity 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 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
Addendum Page 2 of 4
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. Immig_ration 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 Page 3 of 4
Executed this the 27th day of September, 2019.
CITY:
City of Fort Worth Contract Compliance Manager:
By signing 1 acknowledge that I am the person
responsible for the monitoring and administration
of this contract, including ensuring all
By: C�Vi ;� performance and reporting requirements.
Name: Jesus J. Chapa
Title: Assistant City Manager
Date: l �1 By.
Name: M ilyn M� i
Approval Recommended: Title: As istant Li ary Director
f
Approved as to m and Legality:
By: �C-�9--c----
Name: M r lyn Mar i
Title: Ass stant Li ra Director By:
Name: Jo Pate
Attest: Title: s 'stant ity Attorney
Contract Authorization:
4 M&C:
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By:
Name: Mary Kayse ;' I. i
Title: City Secretary
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SELLER: ., NA.S
Democ Software
By:
Name: Dexter Fierro
Title: Staff Accountant
Date: 10/21/19
®FFICIAE RECORD
C�T��ECREI'ARl°
F�. WORTH,TX
Addendum Page 4 of 4
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Demco Software Master License Agreement
Last Updated: December 17, 2018
This Demco Software Master License Agreement ("Agreement") is entered into between Demco, Inc. ("Demco")
and the customer identified on the corresponding order form(s) and its respective legal entity ("Customer," "you," or
"your").
Demco provides and hosts various software applications designed to manage libraries, library programs, and related
resources, as well as related technology and services. Customer desires to engage Demco to provide certain
software and related services and Demco desires to provide the same, all in accordance with the terms of this
Agreement.
ARBITRATION NOTICE; This Agreement Gentains a binding arbitration provision. You agree that, eXGept for
raertain types of disputes deSGribed in the arbitFation picevision below, all disputes between you and DernGe
wall be resolved by mandatory binding airbitration and you waive any right to partiGipate On a Glass aGtion
lawsuit OF Glass wide arbitFateen.
The parties therefore agree as follows:
1. Order Forms; Definitions. Subject to your compliance with this Agreement, Demco will provide to Customer the
software and related services described in each order form ("Software" and "Services," respectively) signed by
Customer ("Order Form"). Order Forms are subject to the terms of this Agreement. "Software" includes all
upgrades, updates, improvements, enhancements, bug fixes, and other changes and modifications to the software
described in the Order Forms as may be made available by Demco in its discretion, together with any
Documentation (as defined below). Demco reserves the right, in its sole discretion, to enhance, improve, update,
upgrade, and otherwise modify the Software at any time. "Documentation" means all manuals, user guides, and
documentation related to the Software that Demco may make available. Demco may engage contractors to provide
the Services and Software. If Demco assigns contractors to perform any Demco obligations under this Agreement,
Demco is responsible for any breach of this Agreement by those contractors.
2. License Grant. Subject to your compliance with this Agreement, Demco hereby grants to you a nonexclusive,
nontransferable, nonassignable, nonsublicensable, revocable (but only as permitted by this Agreement), limited right
to, for the duration of the applicable term (as stated in the applicable Order Form), (a) access, internally display to
Authorized Users (as defined below), and use the Software and (b) download and install any application protocol
interfaces ("APIs"), in each case solely for your internal business purposes and subject to any limits provided in the
applicable Order Form ("Permitted Use"). These rights include the right to use and make a reasonable number of
copies of the Documentation for Authorized Users solely for the Permitted Use.
3. Access; Authorized Users. Customer will limit access to the Software to (a) its employees and contractors who
have a legitimate business need to use the Software for purposes of their work for Customer and are bound by use
restrictions and confidentiality obligations no less restrictive than those contained in this Agreement and (b) its
patrons (including students, faculty, and members of the public, as applicable), provided the Customer privacy policy
required by Section 15 is in place (together, "Authorized Users"). Customer will ensure that each Authorized User
Demcoo • •• Demco,Inc. Mailing Address Phone 866.434.5098
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is informed of and agrees to any end user terms contained in or on the Software prior to using the Software. If any
provision of those end user terms conflicts or is inconsistent with any provision of this Agreement, then, as between
Demco and Customer, this Agreement will control. You are responsible for all access to and use of the Software by
Authorized Users and any other persons whom you permit to access or use the Software. You will ensure each
Authorized User is made aware of any use restrictions for the Software through terms made available on your
website. You are responsible for maintaining the confidentiality of all usernames, passwords, and other log-in
credentials used to access or use the Software. You will promptly notify Demco of any unauthorized access to or
use of the Software of which you become aware.
4. Use Restrictions. You will not, and you will ensure that all persons permitted to access or use the Software
(including all Authorized Users) do not:
1. Access or use the Software for purposes other than the Permitted Use; use the Software for unlawful purposes or in
a manner that violates any law or regulation; or commit fraud or falsify information in connection with any use of the
Software;
2. Copy, reproduce, sell, license, rent, distribute, disseminate, or publish the Software or any part thereof, except as
may be expressly permitted by an applicable Order Form; reconfigure, reverse-engineer, disassemble, decompile,
translate, manipulate, adapt, discover the source code of, prepare any derivative works of, update, combine with
other databases, computer code, or software, or otherwise modify the Software or any part thereof; or obscure,
remove, or alter any proprietary or intellectual property markings, designations, or notices in or on the Software;
3. Use the Software in combination with any Customer or third-party products or services without Demco's prior written
consent;
4. Develop, assist in developing, or have developed on behalf of Customer or any other person software, technology,
or services that compete with or are substantially similar to the Software; otherwise access, use, or analyze the
Software for any purpose that is to Demco's detriment or commercial disadvantage; or use the Software in a manner
that infringes, violates, or misappropriates Demco's or any third party's rights, including patent, copyright, trademark,
trade secret, other intellectual property rights, and privacy rights; or
5. Allow any access to or use of the Software other than by Authorized Users through the use of their respective then-
valid log-in credentials, except as may be expressly permitted by an applicable Order Form; bypass or breach any
security device or protection used by the Software; allow the Software to be accessed using computer terminals,
devices, or other hardware located outside of Customer-operated premises or outside of the country identified on
the applicable Order Form; or input, upload, transmit, or otherwise provide to or through the Software any
information or material that contains viruses, worms, Trojan horses, logic bombs, cancelbots, malware, ransomware,
adware, or other harmful computer code or programming routines, including those designed to or that reasonably
Demco • ••• Demco,Inc. Mailing Address Phone 866.434.5098
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SOFTWARE 11101._ Madison,wl 53704 Madison,wi 53707-7488 web demcosoftware.com
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may disable, impair, damage, interfere with, surreptitiously intercept, expropriate, permit unauthorized access to, or
otherwise harm or impede the Software or any computers, hardware, software, systems, data, or networks
(together, "Harmful Code").
5. Support Services; Service Levels. As part of the Services, Demco will provide support for the Software in
accordance with Demco's Software Support Services and Service Levels located at
[hftps://www.demcosoftware.com/software-support-services-and-service-levelsd, as that page may be updated from
time to time. You understand that Demco's ability to provide support services is dependent in part on your provision
of data, equipment, information, personnel access, and other assistance and materials as Demco may reasonably
request. Demco is not responsible for delivery failures or other support issues caused by you or your failure to
provide such cooperation.
6. Professional Services. Demco will perform any implementation, setup, onboarding, training, consulting, or other
professional Services as described in an Order Form. In the event the Software includes any white-labelled mobile
applications, the Services will include distribution of such mobile application through the mobile app marketplaces,
which may include Google Play, the Apple Store, and the Amazon Appstore. Notwithstanding anything to the
contrary in any Order Form, you acknowledge and agree that Demco is not obligated to provide any Services with
respect to any of your computers, other hardware, operating systems, information technology infrastructure,
databases, web browsers, websites, Internet, or wireless networks, nor for any software not licensed by you directly
from Demco (together, "Customer Systems").
7. Customer Obligations. It is solely your responsibility to provide, set up, maintain, and operate Customer Systems
as necessary to access and use the Services and Software, whether Customer Systems are operated directly by
you or through the use of third parties sourced by you. You will obtain and maintain in effect all licenses,
permissions, permits, consents, certificates, and authorizations that are required by law or regulation applying to
your or Authorized Users' use of the Services or Software. You will provide all cooperation and resources as Demco
may reasonably request to enable Demco to perform its obligations and exercise its rights under this Agreement.
Demco is not responsible for any delay or failure of performance to the extent caused by your delay in performing or
failure to perform any of your obligations under this Agreement.
8. Fees; Expenses. Fees for the Software and Services are stated in the applicable Order Form ("Fees"). Fees are
exclusive of any applicable sales taxes and similar charges, which are solely your responsibility. Unless otherwise
expressly stated in the applicable Order Form, recurring monthly Fees are due annually in advance and one-time
Fees are due on the date of the Order Form. After the initial twelve (12) month period, Fees are subject to increase
at a rate not to exceed 5% annually. Following the initial period, this rate change increase provision will persist
annually with no term Iimit.Demco will invoice you for any additional Fees and you will pay all invoiced Fees to
Demc1 Demco,Inc. Mailing Address Phone 866.434.5098
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Demco within 30 days of the date of the invoice. All Fees are nonrefundable. Any amounts not paid when due will
bear late charges equal to the rate of 3.0% per month or the maximum rate permitted by applicable law, whichever
is lower. Each party will be responsible for any expenses it incurs in the course of performing its obligations and
exercising its rights under this Agreement.
9. Term; Termination.
1. Term. This Agreement commences on the effective date of the Order(s) Form and continues until all Order Forms
have terminated unless terminated earlier in accordance with this Agreement. Each Order Form commences on the
date stated in the Order Form and shall be automatically renewed for successive one (1) year terms thereafter (each
a Renewal Term) until and unless either Party provides the other Party with sixty (60) days prior written notice to the
end of the Initial Term or the Renewal Term.
2. Termination for Cause. Either party may terminate this Agreement or any Order Form for the other party's material
breach of this Agreement or the applicable Order Form, provided the terminating party provides the breaching party
with at least 30 days' prior written notice. The breaching party will have 30 days from the date of the termination
notice to cure the breach. Upon any termination by Demco under this subsection, you will promptly pay Demco all
outstanding Fees due under this Agreement or the Order Form, as applicable.
3. Termination Due to Insolvency. Either party may terminate this Agreement immediately upon written notice if the
other party ceases to conduct business in the normal course, becomes insolvent, admits in writing its inability to
meet its debts as they mature, makes an assignment for the benefit of creditors, commences any bankruptcy
proceedings, or has commenced against it any bankruptcy proceedings that are not dismissed within 60 days.
4. Obligations Upon Termination; Survival. Upon any termination of this Agreement or any Order Form, (i) Demco
may immediately terminate access to and use of any Software, (ii) you will and will direct all Authorized Users to
immediately cease all access to and use of the Software and Documentation, (iii) you will immediately pay any
amounts outstanding under this Agreement (including all Order Forms), (iv) you will promptly destroy all Demco
Confidential Information (as defined below) in your possession, custody, or control and will ensure all Authorized
Users do the same, and (v) you will certify in writing to Demco your compliance with this subsection. Sections 4, 8
(as applicable), 9 (as applicable), 10, 13, 14, 20, 21, 22, 24, and 29, and 30 survive any termination of this
Agreement. Termination of any Order Form does not terminate any other Order Form or the Agreement.
Termination of this Agreement terminates all Order Forms then in effect.
10. Intellectual Property. Demco and its suppliers and licensors, as applicable, are and will remain the exclusive
owners of all right, title, and interest in and to the Services, Software, Documentation, and all ideas, concepts, know-
how, methodologies, and techniques related to the same, including all patent, copyright, trademark, trade secret,
and other intellectual property rights in or to the same, whether owned or developed by or on behalf of Demco or its
Demco
Demco,Inc. Mailing Address Phone 866.434.5098
V I ' ' 4810 Forest Run Road PO Box 7488 Fax 408.716.3148
SOFTWARE ddiI Madison,Wl 53704 Madison,Wl 53707-7488 Web demcosoftware.com
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suppliers or licensors prior to or during the term of this Agreement, and including all modifications, enhancements,
improvements, and derivative works of any of the foregoing, regardless of when created or by whom. Demco will be
free to use any general knowledge, experience, skills, ideas, concepts, know-how, and techniques that are retained
in the memory of Demco's personnel in connection with this Agreement, the Services, or the Software. Demco is the
exclusive owner of and you hereby irrevocably assign to Demco at no cost all right, title, and interest (including all
intellectual property rights) in and to all feedback pertaining to the Services, Software, and Documentation as may
be provided by you, Authorized Users, or your employees or contractors, including suggestions, enhancements,
recommendations, and other comments and feedback, and you warrant that all such feedback is not confidential to
you and that you have the ability to provide the same to Demco. You understand that such feedback may be used
by or on behalf of Demco for any purpose but that Demco is not required to use any feedback. Except as expressly
stated in this Agreement, no licenses or other rights, express or implied, are granted by Demco to you or any
Authorized Users under any patent, copyright, trademark, trade secret, or other intellectual property right of Demco
and Demco retains all such rights.
11. Use of Marks. The Services, Software, and Documentation may contain references to third-party trademarks and
copies of third-party copyrighted materials, which are the property of their respective owners. You will not, without
Demco's prior written consent, use the names, logos, tradenames, trademarks, or service marks of Demco or
Demco's affiliates or its licensors. Prohibited uses and disclosures include advertising and marketing materials,
publications, sales presentations, press releases, and public announcements. Demco may identify you as a
customer in its marketing materials, on its websites, and on its customer lists.
12. Customer Materials. If any Software, Services, or their provision contemplates or reasonably requires you to
provide branding or other customer content or materials to Demco (including, in the case of website builder software
or white-labelled or co-branded mobile applications), you will provide Customer Materials (as defined below) to
Demco in a timely manner or otherwise facilitate Demco's acquisition of such Customer Materials through data
feeds, APIs, or scraping technology. "Customer Materials" means catalog content, website content, logos,
trademarks, tradenames, service marks, graphics, text, artwork, and any other materials as provided by you. You
hereby grant to Demco a limited nonexclusive license to use and adapt Customer Materials as necessary to provide
the applicable Software and Services.
13. Confidentiality.
1. Confidential Information. "Confidential Information" means all information disclosed in connection with the
Services, the Software, or this Agreement by or on behalf of either party ("Disclosing Party") to the other party or
otherwise obtained by the other party ("Receiving Party"), whether or not identified as "confidential,"that the
Disclosing Party considers or protects as confidential and that is reasonably understood to be confidential given the
MailingDemco,Inc.
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48 O Forest Run Road POBox 7 Ph 488 Fax 408 16.31488
S O F T W A R E Madison,Wi 53704 Madison,WI 53707-7488 Web demcosoftware.com
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content of the information and the circumstances of disclosure, including: marketing, advertising, distribution, and
sales practices; information pertaining to the Disclosing Party's or its affiliates' products or services; financial
information; customer and vendor lists and information; strategies, tactics, and business plans; business models;
policies, methods, and processes; technical specifications; software applications; computer code; technology; know-
how; ideas; trade secrets; algorithms; data; and any information identified as confidential or proprietary. Demco's
Confidential Information includes the Software, the Documentation, and the contents of this Agreement, including all
Order Forms. Confidential Information may be in any form and includes all copies of Confidential Information, as
well as all parts of any notes, analyses, or other materials prepared by Receiving Party that contain the Disclosing
Party's Confidential Information. Confidential Information is solely the property of the Disclosing Party.
2. The Disclosing Party's Confidential Information does not include information that (i) is or becomes generally
available to the public other than as a result of a direct or indirect disclosure by the Receiving Party; (ii) is or
becomes available to the Receiving Party from a third-party source, provided the source is not under an obligation of
confidentiality to the Disclosing Party; (iii) was lawfully known to the Receiving Party prior to its disclosure by or on
behalf of the Disclosing Party; or (iv) is independently developed by the Receiving Party without use of or reference
to the Disclosing Party's Confidential Information.
3. Nonuse; Nondisclosure. The Receiving Party may not use the Disclosing Party's Confidential Information for any
purpose except as necessary to perform its obligations or exercise its rights under this Agreement. The Receiving
Party may not disclose the Disclosing Party's Confidential Information except to its employees, contractors, and
professional advisors who have a need to know for purposes of performing the Receiving Party's obligations or
exercising the Receiving Party's rights under this Agreement, provided those persons are bound by confidentiality
obligations as least as stringent as those contained in this Section 13. The Receiving Party will use the same
measures to protect the Disclosing Party's Confidential Information from unauthorized use and disclosure as it uses
to protect its own most confidential information, but in no event less than a reasonable degree of care. The
Receiving Party will be responsible for any breaches of this Section 13 by its employees, contractors, and
professional advisors. Notwithstanding anything to the contrary in this Section 13, nothing in this Section 13 restricts
or otherwise impacts Demco's rights to use Customer Data as provided in Section 14.
4. Third-Party Requests. If a third party requests that the Receiving Party disclose the Disclosing Party's Confidential
Information pursuant to a subpoena, summons, search warrant, governmental order, or other lawful process, the
Receiving Party will notify the Disclosing Party in writing promptly upon its receipt of the request, to the extent
permitted by law, and will, at the Disclosing Party's expense, provide cooperation as the Disclosing Party may
reasonably request in resisting the release of the Confidential Information. If the Receiving Party remains obligated
to release the Confidential Information, the Receiving Party may release the requested Confidential Information,
®emco Demco,Inc. Mailing Address Phone 866.434.5098
4810 Forest Run Road PO Box 7488 Fax 408.716.3148
SOFTWARE 'Hill Madison,Wl 53704 Madison,Wl 53707-7488 Web demcosoftware.com
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provided it releases only the Confidential Information that its legal counsel advises is required to be released in
order to comply with the request and asks for assurance that confidential treatment will be afforded to the
Confidential Information.
5. Upon the Disclosing Party's request at any time, the Receiving Party will promptly destroy or, at the Disclosing
Party's request, return, all of the Disclosing Party's Confidential Information in its possession, custody, or control,
including deleting or rendering unusable all electronic files and data that contain the Disclosing Party's Confidential
Information. However, nothing in this subsection requires Demco to destroy or return any Customer Confidential
Information if this Agreement is then in effect and Demco reasonably requires access to the Confidential Information
requested to be destroyed or returned for purposes of performing its obligations or exercising its rights under this
Agreement.
14. Customer Data. "Customer Data" means all data that is entered into or transmitted using the Software by or on
behalf of Customer or otherwise collected by Demco in the course of providing the Services or Software, including
any Personal Information (as defined below) and all data regarding access to or use of the Software (e.g.,
performance statistics and usage data), as well as all reports and materials generated by the Software containing,
based on, or reflecting any of the foregoing. "Personal Information" means any information that can be used to
identify the person to whom the information pertains. Customer, alone, is responsible for all Customer Data entered
into or transmitted using the Software or otherwise provided to Demco and for the legality and appropriateness
thereof. Demco may use, copy, modify, adapt, create derivative works of, combine with other data and materials,
distribute, display, publish, and commercially exploit in perpetuity throughout the world Customer Data (a) for
purposes of providing the Services, Software, and Documentation and (b) in any manner for its business purposes,
provided that Demco will not use Customer Data in a way that allows Customer, Authorized Users, or any individual
to be identified by a third party. Additionally, to the extent Demco or its suppliers collect information from Customer's
and Authorized Users' use of the Software, the Demco Software Privacy Policy (located
at https://www.demcosoftware.com/privacy-policy) is incorporated into this Agreement by this reference.
Customer's and Authorized Users' use of the Software constitutes their consent to the information collection, use,
and sharing described in the DemcoSoftware Privacy Policy. If any term of the Demco Software Privacy
Policy pertaining to Customer Data conflicts or is inconsistent with any term of this Agreement, this Agreement will
control with respect to that Customer Data. Any Software consisting of a white-labelled mobile application is further
controlled by Demco's end user license agreement entered into with the end user.
15. Customer Privacy Policy. Customer will implement, maintain, and comply with a privacy policy that covers all
access to and use of the Software and Customer Data by Customer's patrons, including the types of information
collected via patrons' use of the Software. Customer's privacy policy must be conspicuously p.�s�ntsd to pUtron
Demco :•••• Demco,Inc. Mailing Address Phone 866.434.5098
4810 Forest Run Road PO Box 7488 Fax 408.716.3148
SOFTWARE 11I l l Madison,wi 53704 Madison,WI 53707-7488 Web demcosoftware.com
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users on each Customer website that connects to or incorporates any Software and must be fully implemented by
the date the corresponding Software is made available to patrons. Demco recommends that Customer informs its
patrons that Customer uses a third party to provide the Software, that Demco collects certain information from
patrons as a result of their access to and use of the Software, and that Demco will use and disclose that information
for purposes of making the Software available. Accordingly, Demco recommends that Customer include those
statements and a link to the Demco Software Privacy Policy in Customer's own privacy policy. Any failure by
Customer to comply with this section will be deemed to be a material breach of this Agreement by Customer and will
thus trigger Demco's right to terminate this Agreement as provided in Section 9.
16. Data Security. Demco will implement and comply with commercially reasonable administrative, organizational, and
physical security measures to protect Personal Information from unauthorized access, disclosure, and use. Those
measures include: maintaining a written information security program, limiting access to Customer Data, encrypting
Personal Information while at rest, securing and implementing security on Demco's systems, implementing
personnel security procedures, and conducting screenings of the Software using anti-virus or other security
protection tools. Demco will maintain plans for business continuity, disaster recovery, and related procedures to
handle business interruptions and delays to the Software.
17. Mutual Warranties. Each party warrants that it has the authority to enter into this Agreement and to perform its
obligations under this Agreement and that it is under no contractual obligation that will interfere with its ability to
satisfy its obligations under this Agreement.
18. Demco Warranties. Demco warrants that it will perform the Services in accordance with industry standards, that the
Software will substantially conform to any specifications contained in the applicable Order Form, and that, to
Demco's knowledge, the Software does not, upon delivery, contain any Harmful Code. Upon any breach of the
warranties in this subsection, as your sole remedy and Demco's sole liability, Demco will reperform or repair the
affected Services or Software, as applicable. Demco is not responsible for any actual or alleged breach of the
warranties in this section to the extent the breach arises from (a) use of the Services or Software except as
expressly permitted by this Agreement, (b) modification or configuration of the Services or Software by any person
other than Demco, (c) use of the Services or Software in combination with any software, hardware, or materials not
provided or authorized in writing by Demco, (d) use of the Services or Software for unlawful purposes, or(e)
Demco's compliance with your instructions.
19. Customer Warranties. Customer warrants that the Software will not be accessed or used in any manner not
permitted by this Agreement(including the Order Forms), that Customer will perform its obligations and exercise its
rights under this Agreement in compliance with all applicable laws and regulations (including any applicable export
D ��/�, �••�• Demco,Inc. Mailing Address Phone 866.434,5098
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or import laws or regulations), and that Customer has the full ability and legal right to provide Customer Data to
Demco as contemplated by this Agreement.
20. Disclaimer of Warranties. Except as provided in Section 18 and to the maximum extent permitted by applicable
law, the Services, Software, and Documentation are provided on an "as is" and "as available" basis, without
warranties of any kind. To the maximum extent permitted by applicable law, Demco disclaims all warranties,
express, implied, statutory, and otherwise, with regard to the Services, Software, and Documentation, including
without limitation any implied warranties of merchantability, fitness for a particular purpose, title, and
noninfringement and any warranties arising from a course of dealing or usage in trade. Except as provided in
Section 18, Demco does not warrant that the Services, Software, or Documentation will be free of error, viruses, or
other harmful components or that any defects will be corrected, nor does Demco guarantee the quality, accuracy, or
availability of the Services, Software, or Documentation. Demco has no responsibility for the timeliness, deletion,
misdelivery, or failure to store any Customer Data or user communication. Customer acknowledges and agrees that
the Software may be subject to limitations, delays, and other problems inherent in the use of the Internet, wireless
networks, and electronic communications. Demco is not responsible for any delays, inaccuracies, delivery failures,
or other failures, damages, or losses resulting from those problems or any other problems outside of Demco's
reasonable and direct control, including the Internet, Customer's wireless networks, and any third-party software.
Demco makes no representation that the Software is appropriate or available for use in locations other than the
United States. If Customer chooses to access or use the Software from locations other than the United States,
Customer does so at its own risk and Customer is responsible for complying with applicable laws and regulations.
No advice or information, oral or written, obtained by Customer from Demco or in any manner from the Services,
Software, or Documentation creates any warranty.
21. Indemnification.
1. Indemnification by Demco. Demco will indemnify, defend, and hold harmless Customer and its directors, officers,
employees, contractors, and agents from and against all third-party claims, complaints, actions, lawsuits, demands,
and proceedings (together, "Claims"), as well as any losses, liabilities, damages, judgments, fees, fines, penalties,
costs, and expenses (including reasonable attorneys' fees) (together, "Losses") incurred as a result of those Claims
that are finally awarded by a court of competent jurisdiction, arising out of or in connection with a claim that the
Services, Software, or Documentation as provided by Demco and used as expressly permitted by this Agreement
infringes, violates, or misappropriates a registered United States patent, copyright, trademark, or trade secret of that
third party ("Infringement Claim").
2. Infringement Claims. Demco has no obligations with respect to any Infringement Claim to the extent the
Infringement Claim arises from (1) use of the Services, Software, or Documentation except as expressly permitted
Demco,Inc. Mailing Address Phone 866.434.5098
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SOFTWARE ill._ Madison,wl 53704 Madison,wl 53707-7488 Web demcosoftware.com
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by this Agreement, (2) modification or configuration of the Services, Software, or Documentation by any person
other than Demco, (3) use of the Services, Software, or Documentation in combination with any software, hardware,
or materials not provided or authorized in writing by Demco, (4) use of the Services, Software, or Documentation for
unlawful purposes, or (5) Demco's compliance with your instructions. If an Infringement Claim arises or, in Demco's
reasonable opinion, is likely to disrupt your use of the Software, then Demco will, at its own option and expense, (i)
modify the infringing component(s) of the Software so as to make them noninfringing while maintaining similar
functionality; (ii) secure for Customer the right to access and use the infringing component(s) of the Software; (iii)
replace the Software with a compatible, functionally equivalent software; or, (iv) if Demco determines the foregoing
options are not commercially reasonable, terminate the Agreement or the applicable Order Form(s) and provide
Customer a pro rata refund of any prepaid but unused recurring fees paid for the infringing Software, provided
Customer ceases all access to and use of the same. The obligations and rights stated in this Section 21 are
Demco's sole liability and your sole remedy for Infringement Claims.
3. Indemnification by Customer. Customer will indemnify, defend, and hold harmless Demco, its affiliates, and its
and their respective directors, officers, owners, employees, contractors, agents, suppliers, and licensors (together,
"Demco Parties")from and against all Claims, as well as any Losses incurred as a result of those Claims, arising
out of or in connection with: (1) any claim by a third party arising from the provision to or use by Demco of any
Customer Materials, (2) injury or death to persons or damage to tangible personal property caused by the
negligence or willful misconduct of Customer, Authorized Users, or Customer's employees or contractors, (3)
access to or use of the Services, Software, or Documentation by Customer, Authorized Users, or Customer's
employees or contractors (including misuse of the Software and use of the Software for unlawful purposes), (4) any
breach of this Agreement by Customer, Authorized Users, or Customer's employees or contractors, (5) any
authorized use of Customer Data by Demco or any failure by Customer to comply with Section 15 or to post a
Customer privacy policy that fully contemplates and covers the collection, use, and sharing of data by Demco, or (6)
any violations of applicable law or noncompliance with applicable regulations by Customer, Authorized Users, or
Customer's employees or contractors.
4. Upon learning of any Claim or Loss subject to this Section 21, the party seeking indemnification will notify the
indemnifying party in writing; will permit the indemnifying party to control the defense of the Claim at the
indemnifying party's own expense, provided the indemnified party may participate with counsel of its own choice at
its own expense; and will provide reasonable assistance to the indemnifying party, at the indemnifying party's
expense, in the defense of the Claim. However, any failure by the indemnified party to satisfy these obligations will
not limit the indemnifying party's obligations except to the extent the indemnifying party suffers actual prejudice as a
direct result oft hat failure. The indemnifying party will not enter into any settlement agreement, consent to rile entry
[ emco : Demco,Inc, Mailing Address Phone 866.434,5098
V 4810 Forest Run Road PO Box 7488 Fax 408.716.3148
SOFTWARE 111I l l Madison,wi 53704 Madison,w1 53707-7488 web demcosoftware.com
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of any judgment, or otherwise settle any Claim or Loss without the indemnified party's specific prior written consent,
which consent may not be unreasonably withheld, conditioned, or delayed. If the indemnifying party does not
assume full control over the defense of a Claim, the indemnified party has the right to defend against the Claim in
any manner it deems appropriate at the indemnifying party's expense.
22. Limitation of Liability. Excluding any liability arising from the parties' indemnification obligations and any liability
arising from a violation of Demco's intellectual property rights, and to the maximum extent permitted by applicable
law: (a) in no event will the Demco Parties be liable for any indirect, special, incidental, exemplary, punitive, or
consequential loss or damage, for any loss of data, business, or revenue, nor for any cost of procurement of
substitute goods or services, arising out of or related to this Agreement or the Services, Software, or
Documentation, whether the claim is based in contract, tort (including negligence), strict liability, warranty, or
otherwise, and even if an Demco Party has express knowledge of the possibility of the loss or damage; and (b)
Demco's maximum liability under this Agreement arising out of any claim whatsoever, regardless of the form of
action, will be limited to the amount of Fees paid by Customer for the applicable Software or Services giving rise to
the liability under the applicable Order Form during the 12-month period immediately preceding the event that gave
rise to the liability, even if this remedy fails of its essential purpose.
23. Audit; Suspension. Upon reasonable prior written notice and in a manner that does not unreasonably disrupt your
day-to-day operations, Demco and its designated representatives may audit, examine, and make copies of data and
other information in your possession, custody, or control that relate to or concern your compliance with this
Agreement. If any audit reveals a material noncompliance with this Agreement, Customer will, within 30 days after
receiving an invoice for the same, reimburse Demco for all reasonable out-of-pocket expenses incurred in
conducting the audit. Additionally, Demco may immediately suspend Customer's and any Authorized User's access
to any Services or Software if Demco reasonably suspects a material breach of this Agreement or that Customer's
access to or use of the Services or Software presents a security or other threat or risk to Demco or any of its
customers.
24. Iniunctive Relief. Your breach of Sections 3, 4, 10, or 13 would cause irreparable harm to Demco and monetary
damages would be insufficient to remedy that harm. Accordingly, in the event of actual or threatened breach of any
of those sections, Demco will be entitled to injunctive relief, without the need to post bond, prove damages, or meet
any similar requirement, as well as any other remedies available at law or at equity.
25. Force Maieure. Except for your payment obligations, neither party will be liable for any failure or delay in performing
any obligations under this Agreement due to circumstances beyond its reasonable control that prevent it from
performing its obligations, including acts of God, actions of government, fires, floods, earthquakes, other acts of
Demc /^ Demco,Inc. Mailing Address Phone 866.434.5098
v4810 Forest Run Road PO Box 7488 Fax 408.716.3148
Madison,WI 53704 Madison,Wl 53707-7488 Web demcosoftware.com
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nature, strikes or other labor disputes, civil disturbances, terrorist threats or acts, explosions, national emergencies,
and power, communications, satellite, and network outages or failures.
26. Notices. Except as may be otherwise provided, all notices, consents, and other communications permitted or
required to be given under this Agreement must be in writing and addressed to the recipient's address in this section
or such other address as the recipient provides in accordance with this section and will be deemed validly given
upon delivery if personally delivered with fees prepaid, including by a recognized courier service; upon receipt if
delivered by certified or registered United States mail, postage prepaid and return receipt requested, as indicated by
the date on the signed receipt; or on the date the email is sent if via email, provided a hard copy is also provided.
Please print or otherwise save a copy of this Agreement, all Order Forms, and all notices, consents, and other
communications for your reference. Where Demco is the recipient, communications must be sent to Demco
Software, 4810 Forest Run Road, Madison, Wisconsin 53704, with a copy to webmaster[c)-demco.com. Where
Customer is the recipient, communications must be sent to the address on the applicable Order Form.
27. Relationship of the Parties. Demco is an independent contractor of Customer. This Agreement does not create
any employment, agency, partnership, or joint venture relationship between the parties. Neither party has any
authority to contract for or bind the other in any manner or make any representation or commitment on behalf of the
other party.
28. Assignment. Customer may not assign this Agreement or any of its rights or obligations under this Agreement, in
whole or in part, without Demco's prior written consent. Any attempted assignment by Customer in violation of this
section will be void. Demco may assign this Agreement or any of its rights or obligations under this Agreement, in
whole or in part, without obtaining your consent. This Agreement is binding upon and inures to the benefit of the
parties' respective successors and permitted assigns.
29. Governing Law. This AgFeement is governed by the laws of the state Of WISGensin, without Fegard for its GenfliGt e
law prinGiples. The URAWn Computei: Information TransaGtions AGt or any veFsion thereof adopted by any state in
any form does not apply to this AgFeement. The United NatiE)ns GenventiE)n far the IntematieRal Sale of Goods dees
not apply.Venue is exclusively in the state or federal courts, as applicable, located in Dane County, Wisconsin, with
respect to any dispute
arising under this gfeement
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30. Dispute Resolution; Arbitration Agreement; Class Waiver; Waiver of Trial by Jury.
1. Good Faith Negotiations. Each party will, prior to initiating a legal proceeding under this Agreement, consult with
the other party regarding any dispute, claim, or controversy arising under this Agreement (together, "Disputes") and
will, in good faith, negotiate with the other party in an attempt to resolve the Dispute on an amicable basis.
Any Dispute that has not been resolved by 60 days after the GOm-mencement of the I--- .-ith negotiations required
above will '-,e-f-eselved by binding arbitration as desUffibed in this SeGtien 30 (this 'Arbitration Agree rne nV)-. But-,-m
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the event of any actual, alleged, or threatened breach Of confidentiality or violation of DeMGO'S
or other proprietary rights, DemG0 May immediately resort to GGUFt PFOGeedings in a GOUFt Of GOrnpetent jurisdiction in
order to seek immediate injunGtiVe relief Without posting bond, proving darnages, or meeting any similar
requirement. Any institution of any aGtion for injunGtive relief will Gt--C�nsfifi itia a waiver of the right or ebligati
either party to submit any Glairn seeking relief other than injunGtive relief to arbitFatiE)R. This Arbitration AgFeernen
applies to Customer and YGLIF pFedeGeSSOFS in interest, SUGGessors in interest, and aSSigRS; DeMGe Parties and their
respective predeGeSSOFS in interest, sucGessors in interest, and assigns; and authorized and unauthorized users o
beneficiaries of the Software
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3-. AFbitration PFOGeedings will be administered by the American Arbitration Association ("AAA") before an arbitrator
Ghosen by agreement of the parties. if the parties faH to reaGh agreement on the arbitrator within 30 days after
service of the demand far arbitration, the arbitrator will be GhOSeR by the AAA. The deGisien of the arbitrator will be
final and binding. ARY final award or judgment may be filed and enforGed OR any GOLIFt of Gempetent jurisdiCtiOR. The
parties will share equally OR the Gests assessed for the arbitration and eaGh party Will bear its own attorneys' fees
and Gosts. The paFties understand that they would have had a right or opper-tunity to litigate Dispute
through a e to have a judge or juFycase,deGide their
proceeding involving multiple f
they have instead Ghosen to have all Disputes decided through
4. Plarae; Federal Arbitiration AGt. The pIaGe of arbitration will be Dane GOLARty, VViGGonsin, Linless otherwise agreed
to in writing by all par-tees to the arbitration. This Arbitration Agreement evidenGes a traRsaGtion involving interstate
GeMmeFGe and the Federal Arbitration AGt, 9 U.S.C. SeGtions 1 16, Will govern the interpretation, enfoFGernent, and
proGeedings pursuant to thus Arbitration Agreement,
5-. Any and all aGtions taken under this Arbitration Agreement, inGlUding all filings, orders,judgments, and awards
tr Tome Limitation on Glaorns. AFbitFatiGR PFE)Geedings must be initiated within one year after any Dispute
otherwise, the Dispute is permanen+l�,«y_pu rea._
31. Waiver; Severability; Headings. The waiver by either party of any term of this Agreement must be in writing and
signed by the party granting the waiver and no waiver of any term of this Agreement will be deemed a future waiver
of the same term or a waiver of any other term. If any term of this Agreement conflicts with or is inconsistent with
any term of any Order Form, the terms of the Order Form will control. If any term of this Agreement is held to be
unenforceable in any jurisdiction, that term will be ineffective as to that jurisdiction to the extent of the invalidity or
unenforceability and without invalidating any other term of this Agreement. The headings in this Agreement are for
convenience only and will not affect the construction or interpretation of this Agreement.
("� emco • Deco,Inc. Mailing Address Phone 866.434,5098
v .+. +� 4810 Forest Run Road PO Box 7488 Fax 408.716.3148
SOFTWARE �I�+��. Madison,wl 53704 Madison,wl 53707-7488 web demcosof[ware.com
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32. Entire Agreement; Modification. This Agreement, including all Order Forms and the Demco Software Privacy
Policy, is the entire agreement between the parties with respect to its subject matter and supersedes all previous
agreements and understandings, whether oral or written, between the parties with respect to that subject matter. If
Customer submits purchase orders or other documents, no preprinted or other terms contained in those documents
will amend or supersede any term of this Agreement. Demco may modify this Agreement at any time upon 45 days'
notice to you. Where any material changes Demco makes to this Agreement are not acceptable to you, you may
terminate this Agreement in its entirety (including all Order Forms) effective on the date those material changes
would have gone into effect by giving no less than 15 days' prior written notice to Demco, provided you pay Demco
all Fees for all Software and Services provided prior to the date of termination. For the avoidance of doubt, the
foregoing does not restrict or otherwise impact Demco's right to modify the Demco Software Privacy Policy at any
time as provided therein. For purposes of clarity, the parties agree that the then-current version of this Agreement
located at https://www.demcosoftware.com/master-license-agreement governs all Order Forms, regardless of the
Order Forms' effective dates.
33. Contact Us. Please direct any questions and concerns regarding this Agreement to Demco by email
at help@demcosoftware.com, by telephone at 866-434-5098, or by mail at Demco Software, 4810 Forest Run
Road, Madison, Wisconsin 53704.
Demc/^� .* •' Demco,inc. Mailing Address Phone 866.434.5098
v 4810 Forest Run Road P4 Box 7488 Fax 408.716.3148
SOFTWARE I Madison,Wl 53704 Madison,Wl 53707-7488 wee demcosoftware.com