Loading...
HomeMy WebLinkAboutContract 43586 (2)are SECRTARV CONTRACT Boa 5.) k ue AGREEMENT BETWEEN THE CITY OF FORT WORTH AND BOOPSIE, INC., FOR MOBILE LIBRARY APPLICATION THIS Contract is made and entered into by and between the CITY of Fort Worth, a home -rule municipal corporation of the State of Texas, located within Tarrant, Parker, Wise and Denton Counties, (hereinafter referred to as ("Customer" and/or "City"), acting by and through Thomas Higgins, its duly authorized Assistant City Manager, and Boopsie, Inc. ("Boopsie"), a Delaware Corporation acting by and through Greg Carpenter, its duly authorized Chief Executive Officer. NOW THEREFORE, in consideration for the covenants and Contract hereafter set forth, the parties hereto agree as follows: CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. Product Order Forrn 2. Schedule A -- Initial Invoice, Implementation and Subscription Fees 3. Schedule B Boopsie License and Hosted Service Terms and Conditions 4. Schedule C -- Mobile Operating Systems 5. Schedule D o Optimum Library App Product Features 6. Schedule E o Trademarks 7. Schedule F — End User License Agreement 8. Schedule G o Additional Terms and Conditions All Schedules attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of Schedule G shall control. CUSTOMER Fort Worth Library 500 W. 3rd Street Fort Worth, TX 76102 Customer Contact: Boopsie Contact: PRODUCT ORDER FORM Library Optimum Feature Set Amy Bledsoe Digital Resources Manager, amy.bledsoe@fortworthtexas.gov 817.392.8049 James Gowers SVP Business Development fames@boopsie.com (650) 919 4675 Initial Invoice for Fees Due for Products and Services Specified on Schedule A: The total cost for the one-year contract is $24, 990.00 (which includes a $15, 995.00 one-year subscription fee and a one-time implementation fee of $8,995.00). The subscription fee for each of the two one-year renewal options is $15,995.00 per year. OFFICIAL RECORD ; CITY SECRETARY ttWORTh9TY 09-13-12 PO4:46 IN Initial License Term: One year term with two one-year renewal options. Effective Date: Contract Execution Date LICENSE AND HOSTED SERVICE TERMS The license and purchase of the Boopsie products and/or services, as applicable, specified on Schedule A attached hereto ("Schedule A") are subject to Boopsie License and Hosted Service Terms and Conditions ("License and Hosted Service Terms"), also attached hereto as Schedule B. This Product Order Form, Schedule A, the License and Hosted Service Terms, and any addenda signed by both parties constitute the entire agreement ("Agreement") between the parties concerning Customer's use of the Hosted Service and purchase of Boopsie services. Customer's authorized representative by his or her signature on this Product Order Form, acknowledges Customer's (i) acceptance of the License and Hosted Service Terms, and (ii) binding commitment to pay for the products and services specified on Schedule A in accordance with the payment terms set forth herein and in the License and Hosted Service Terms. Capitalized terms not otherwise defined herein shall have the meaning set forth in the License and Hosted Service Terms. FEES AND PAYMENT TERMS. The one-time Implementation Fee and the recurring Annual Subscription Fee for Year 1 are due and payable in US Dollars on the Effective Date described on this Product Order Form. The Annual Subscription Fee for subsequent years are due in US Dollars on each anniversary of the Effective Date and payable within thirty (30) days of date of invoice. Upon execution of this product order document, payment obligations for Year 1 are non -cancelable and all payments made by Customer are non-refundable, except as expressly provided in the License and Hosted Service Terms. [Signatures Appear on Following Page] Date Approved: IN WITNESS WHEREOF , F the parties hereto executed this q r this ' �r da 9 Agreement in mc�!#r as o f the p es Effective D e ; 2012, ACCEPTED AND AGREED: CITY OF FORT WORTH: Charles Daniels sistant City Manager Date; Staa ATTEST: dzi Maly .1.(k City Seer?" APPROVED LEGALI Sy: Cheri K. 8yles Assistant City Attorney CONTRACT AUTHORIZATION:' MSC: .1)0 I a iota we BOOPS1E, INC. I ' es,-.0/ ,Q-ooantargate ocr Of FithIPZI 4,44 43000000000.40% /71(*0 Ch44,i � � O 'f� O �n ♦ 4 VII4g ��� aua 3 • ter cutive beer OFFICIAL RECORD CITY SECRETARY FtWORTh,TX • SCHEDULE A INITIAL INVOICE; IMPLEMENTATION AND SUBSCRIPTION FEES 1. Fees for the First Year of the Agreement from the Effective Date. • Implementation Fee: $8,995.00, due on the Effective Date Annual Subscription Fee: $15,995.00, due on the Effective Date 2. Fees for the two one-year renewals options from the Effective Date of the Agreement. • Annual Subscription Fee: $15,995.00, due on the anniversary date of the Effective Date SCHEDULE B BOOPSIE LICENSE AND HOSTED SERVICE TERMS AND CONDITIONS 1. DEFINITIONS "Activated Custom Client" means the downloaded Custom Client (as defined below) that is actually used by an End User at least one time. `Agreement" means collectively (i) the initial Product Order Form, Schedules and any follow-on Product Order Forms, (ii) the License and Hosted Service Terms* and (di) any addenda signed by both Boopsie and Customer. "Confidential Information" means all information described in Section 9 "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of an entity. "Custom Client" means the Customer - branded version of the Boopsie client software that acts as the input and display mechanism for the interactive search of Customer's information that is directly downloaded to the mobile devices as set forth in Schedule C. "Customer" includes the Customer whose n ame is set forth in the Product Order Form and any affiliated entity which Controls, is Controlled by, or is under common Control with Customer, provided all such entities o rdering or using Boopsie products or the Hosted Service have agreed to be bound by the terms and conditions of this Agreement. "Customer Features" are features identified o n Schedule D. "Customer Contact" means Customer's staff member who is knowledgeable about Customer Equipment and Customer's use of the Hosted Service. Customer Data" mean all text, files, data, output, programs, files, or other information or matenal that Customer provides or uses in conjunction with the Custom Client or Hosted Service. "Customer Equipment" means Customer's computer hardware, software and network 5 infrastructure used to access the Hosted Service "Trademarks" means those Boopsie and Customer trademarks identified on Schedule E. `Documentation" means the online help files and other content relating to use of the Hosted Service made available by Boopsie on the Network. `Effective Date" is set forth on the initial Product Order Form. `Extension Term" means each additional renewal period, which shall be for a period of one year, for which this Agreement is extended pursuant to Section 15. "Hosted Service' means collectively the Custom Client, any software updates, documentation and any support or other services that support the Custom Client to deliver the Customer Features listed in Schedule D. "Initial Term" means the initial license term specified on the Product Order Form, commencing on the Effective Date. "Network" is the hosted network that is provided by Boopsie. `Product Order Form" means Boopsie' Product Order Form or other ordering document (e.g. Customer's Purchase Order) that (i) specifies the products or services purchased by Customer, (ii) references this Agreement; and (iii) is signed or initialed by authorized representatives of both parties. "Scheduled Down Time" means the total time during which Customer is not able to access the Hosted Services due to planned maintenance. "Software Updates" means updates, modifications, or new releases of the Boopsie client software or hosted services that Boopsie generally makes available via the Network at no additional charge to its customers who are current in payment of Subscription Fees. Software Updates may be used in accordance with the terms and restrictions relating to Software hereunder Software Updates do not include products, modules or options that are designated by Boopsie as new products, modules or options for which Boopsie charges a separate fee. `Subscription Fees" means the fees paid by Customer for the right to use the Hosted Service and receive Support during the applicable Term. "System Availability' means the percentage of total time during which the Hosted Service is available to be accessed by Customer, not including the Scheduled Down Time or down time required for emergency maintenance outside the Scheduled Down Time periods. "Term" means the Initial Term and any Extension Term. 'Work Product" means all work (including any tools, materials, derivative works and modifications made to the Boopsie client software or Documentation) used, developed or created by Boopsie for Customer during the course of providing the Hosted Services, Custom Client, Support, consulting or any other services to Customer. Work Product does not include Customer Data. 2. LICENSE GRANT a. Hosted Services. Subject to the terms of this Agreement, Boopsie hereby grants Customer a limited term, non-sublicensable, non -transferable, and non-exclusive license to access and use the Hosted Service in accordance with the Documentation solely for Customer's intemal business purposes. Authorized users include Customer employees and Customer subcontractors, agents, and Boopsie, provided such subcontractors, agents, and Boopsie's use the Hosted Service solely on behalf of Customer in accordance with this Agreement. b. Custom Client License. Subject to Customer's compliance with the terms and conditions of this Agreement (including without limitation Section 2.c below), Boopsie grants to Customer a non-exclusive license during the term of this Agreement: (i) to distribute the Custom Client via download (or other means such as CD) directly to End Users; (ii) to use the Custom Client as necessary to provide support to End Users; and (iii) to reproduce the Custom Client solely as necessary in connection with exercising the rights granted in the preceding clauses (i) and (ii) of this Section 2 b c. EULA for Custom Client. All End Users to whom Customer distributes the Custom Client must be bound by and Customer will not distnbute the Custom Client to any End User who has not expressly accepted, the terms and conditions of the Boopsie EULA whether the Boopsie EULA is incorporated by reference in Customer's end user license agreement or linked to from Customer s end user license agreement or otherwise. The Boopsie EULA is attached hereto on Schedule F. d. Customer License of Custom Data and Trademarks. Customer grants to Boopsie a non-exclusive license during the term of this Agreement to use the Customer Data and Customer Trademarks only as necessary to provide the Custom Client and Hosted Services to Customer pursuant to this Agreement 3. LICENSE RESTRICTIONS. Customer acknowledges that the Custom Client, Hosted Services, Software Updates and Network (hereinafter collectively referred to as "Software") contain trade secrets of Boopsie and its licensors and, in order to protect such trade secrets and other interests that Boopsie and its licensors have in the Boopsie Software, Customer agrees not to disassemble, decompile or reverse engineer any of the Boopsie Software, or permit any third party to do so, except and solely to the extent, if any, that applicable local law requires that such activities be permitted. Except as expressly authorized by this Agreement, Customer will not: (i) copy or reproduce the Software, in whole or in part except as may be permitted under this Agreement; (ii) modify the Software; or (iii) provide or make the functionality of the Software available to third parties except as may be permitted by this Agreement. Customer will reproduce on each copy it makes of the Custom Client, and not alter remove or obscure, the Intellectual Property Rights notices of Boopsie and its licensors, that may appear on the Custom Client or any Software provided to Customer. 4. CUSTOMER OBLIGATIONS. a. Customer Service Related. Customer will at all times: (i) provide and maintain (or have provided and maintained) a content delivery system and the computer server(s) on which the Customer Data is stored and made available to Boopsie to provide the Hosted Service; (ii) cooperate with and assist Boopsie and provide Boopsie with access to such information and Customer Data as may be reasonably required by Boopsie in order to implement and provide the Hosted Service; and (iii) use commercially reasonable efforts to prevent unauthorized access to or use of, the Hosted Service, the Custom Client or any other Software and will notify Boopsie promptly of any such unauthorized access or use. b. Eauipment and Telecommunications and Internet Services. Boopsie is not responsible for (i) obtaining and maintaining any Customer Equipment or any ancillary services needed to connect to, access or otherwise use the Hosted Service; (ii) paying all third -party access charges (e.g. ISP telecommunications, etc.) incurred while using the Hosted Service; and (iii) ensuring that the Customer Equipment and any ancillary services are compatible with the Hosted Service and comply with all configuration requirements set forth in the Documentation. c. Customer Features Data. Customer shall provide to Boopsie all data necessary to create all features listed in Schedule D. 5. OWNERSHIP. Boopsie (or its licensors) retains all patent, copyright, trademark and other intellectual property nghts in the Hosted Service, the Software, and the Custom Client (except for Customer Data or Customer Trademarks) and any work product that may be created for Customer pursuant to this Agreement. There are no implied rights and all other nghts not expressly granted herein are reserved. Unless otherwise agreed to in writing by the parties, all license, right or interest to Work Product shall be the property of Boopsie. Customer retains all right, title and interest to Customer Trademarks and Customer Data 6. FEES. The Implementation Fee and the Annual Subscription Fee and their payment due dates are set forth on Schedule A. Boopsie may change or increase the Fees it charges Customer for the Customer Features after the Initial Term ends. a. Collection All fees are payable in US dollars. Except as expressly provided in this Agreement, fees specified on a Product Order Form are non-refundable. Customer shall pay any and all applicable taxes and duties imposed as a result of Customer's purchase of products or services under this Agreement, except for taxes based on Boopsie's income. When Boopsie has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Boopsie with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will reimburse Boopsie for all reasonable travel and other related expenses pre - authorized by Customer and incurred by Boopsie in the performance of any Support or consulting services as more particularly described in Schedule A. All consulting services shall be performed in accordance with a statement of work signed by Boopsie and Customer that describes the services to be performed and references this Agreement. 7 SUPPORT. Boopsie shall provide Support at no additional charge provided Customer is current in payment of the applicable Subscription Fees. Support also includes Software Updates. Boopsie shall have no obligation to support problems caused by (i) Customer's negligence or unauthorized modification of any part of the Hosted Service. (ii) Software in any form or configuration other than as provided by Boopsie; or (iii) other causes external to the Hosted Service or beyond the reasonable control of Boopsie. In addition, Boopsie shall have no obligation to support the installation or maintenance of applications or devices external to the Hosted Service. 8. CUSTOMER INDEMNITY. Customer is responsible for (i) all Customer Data that Customer uploads, posts transmits, or otherwise disseminates using the Hosted Service; (ii) maintaining secure access to the Hosted Service; (iii) maintaining reasonable security mechanism with respect to issuance of username and password information; (iv) any and all activities that occur under Customer's Hosted Service account; and (iv) using the Hosted Service solely for lawful purposes and in compliance with all applicable laws including, without limitation copyright, trademark privacy, obscenity, defamation, and anti-spammmg, laws. Customer acknowledges that Customer is responsible for complying with privacy laws that apply to the collection, use and dissemination of Customer Data. Customer will notify Boopsie immediately of any unauthorized use of Customer's Hosted Service account or any other breach of security regarding Customer's Hosted Service account. Customer will at its expense defend and indemnify Boopsie against and pay all costs and settlement or damages awarded against Boopsie resulting from a third party claim related to any breach of Customer's obligations under this Section 8 as allowed by law. 9. CONFIDENTIALITY. Confidential Information includes, without limitation, the Documentation Software Updates, results of Software or Hosted Service comparative performance benchmarks passwords provided to Customer for Hosted Service access, Customer Data, information related to past, present or future research, development or business affairs, any proprietary products, materials or methodologies, or any other information that which by its nature is normally and reasonably considered confidential or provides the disclosing party with a competitive advantage. Confidential Information shall be marked as confidential or proprietary or, if disclosed verbally, shall be identified as confidential or proprietary at the 8 time of disclosure. The receiving party shall protect the disclosing party's Confidential Information with the same degree of care that it regularly uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event Tess than a reasonable degree of care. The receiving party shall use the Confidential Information only for the limited purpose of performing its obligations under this Agreement. Confidential Information shall not be provided or disclosed to anyone except those employees or contractors of the receiving party with a need to know under this Agreement. Confidential Information and any and all authorized copies thereof shall remain the property of the disclosing party and promptly shall be destroyed or returned if requested by the disclosing party. Notwithstanding any provision contained in this Agreement, neither party shall be required to maintain in confidence any of the following (i) information that, at the time of disclosure to the receiving party, is in the public domain; (ii) information that, after disclosure, becomes part of the public domain without restriction, except by breach of this Agreement; (iii) information that was in the receiving party's possession at the time of disclosure, and which was not acquired, directly or indirectly, from the disclosing party; (iv) information that the receiving party can demonstrate resulted from its own research and development independent of and without reference to disclosure from the disclosing party; (v) information that the receiving party receives from third parties provided such information was not obtained by such third parties from the disclosing party on a confidential basis; or (vi) information that is produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production. 10. LIMITED HOSTED SERVICES WARRANTY. Boopsie warrants that for the Term of this Agreement (i) the Hosted Service will perform in all material respects in accordance with the Documentation; and (n) any consulting services will be provided in a professional and workmanlike manner. As Customer's sole and exclusive remedy and Boopsie's entire liability for any breach of the foregoing warranty, Boopsie will either (a) fix, provide a work -around or otherwise remedy a problem that results in the Hosted Service being nonconforming; or (b) reperform any nonconforming consulting services so that the Hosted Service or consulting services operate as warranted. If, after thirty (30) days from the date of receipt of written notice of any non- conforming Hosted Service or consulting services from Customer, Boopsie does not fix the non -conforming Hosted Service or re - perform the non -conforming consulting services, Boopsie will either (A) refund a pro- rata portion of the Subscription Fees from the date of Customer's notice of the Hosted Service non-conformance through the remainder of the applicable Term; or (B) refund fees paid for the nonconforming consulting services. 11. LIMITED SERVICE LEVEL WARRANTY. Boopsie will undertake commercially reasonable efforts to provide Customer with 100% System Availability. The System will have periodic Scheduled Downtime to, for example, maintain or improve system performance. Boopsie will at times have to run batch process that may slow down Hosted Service performance. Boopsie will make commercially reasonable efforts to remedy any performance problem. If Boopsie fails to correct such performance problem within 10 days from the date of Boopsie's receipt of written notice from Customer, as Customer's sole and exclusive remedy and Boopsie's entire liability for such failure to correct such performance problem, Customer may terminate this Agreement pursuant to Section 15 and Boopsie will refund a pro rata portion of the Subscription Fees from the time of termination through the remainder of the applicable Term. 12. WARRANTY EXCEPTIONS. The Hosted Service and System Availability warranties set forth in Sections 10 and 11 are void to the extent any problem which results in the 9 Hosted Service performance or System Availability to be other than as warranted is due to (i) use of the Hosted Service outside the scope described in the Documentation; (ii) Customer Equipment and/or third party software, hardware or network infrastructure outside of the data center supplied by Boopsie and/or not under the direct control of Boopsie; (iii) failure of the external Internet beyond Boopsie's Network; (iv) electrical or Internet access disruptions; (v) any actions or inactions of Customer or any other third party not under the direct control of Boopsie; (vi) attacks (i.e hacks, denial of service attacks, malicious introduction of viruses and disabling devices) caused by third parties; or (vii) events of force majeure 13. NO OTHER WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET ABOVE IN SECTIONS 10 AND 11 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Without limiting the generality of the foregoing, Boopsie disclaims any responsibility for damages or losses incurred by Customer or any End User resulting from use of Hosted Services or the Custom Client or from any content downloaded through use of the Boopsie Service or the Custom Client. 14. LIMITATION OF LIABILITY. EXCEPT (I) AS PROVIDED IN SECTION 8; (II) FOR DAMAGES RELATED TO CLAIMS BASED ON A BREACH OF ITS OBLIGATIONS SET FORTH IN SECTION 10 OR (III) DAMAGES RELATED TO CLAIMS BASED ON ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BOOPSIE'S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER TO BOOPSIE FOR THE HOSTED SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. a. EXCEPT FOR (I) DAMAGES RELATED TO CLAIMS THAT ARE THE SUBJECT OF INDEMNIFICATION UNDER THIS AGREEMENT; (II) DAMAGES RELATED TO CLAIMS BASED ON EITHER PARTY'S BREACH OF ITS OBLIGATIONS SET FORTH IN SECTION 10; OR (III) DAMAGES RELATED TO EITHER PARTY'S UNAUTHORIZED USE DISTRIBUTION, OR DISCLOSURE OF THE OTHER PARTY'S INTELLECTUAL PROPERTY, AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES INCLUDING BUT N OT LIMITED TO DAMAGES FOR LOSS OR INACCURACY OF DATA, LOSS OF P ROFITS OR REVENUE, BUSINESS INTERRUPTION, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE P OSSIBILITY OF SUCH DAMAGES. b. NOTWITHSTANDING ANYTHING SET O UT ABOVE OR OTHERWISE IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT SHALL ATTEMPT TO LIMIT O R EXCLUDE ANY LOSS OR DAMAGES ARISING FROM DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE 15. TERM AND TERMINATION. This Agreement is effective immediately on execution of the Product Order Form and unless sooner terminated by either party in accordance with this Section 15 shall remain effective for the Term. After the Initial Term, if Customer is current in payment of all applicable fees, this Agreement shall automatically extend for an Extension Term, unless terminated by either party by giving notice to the other party not less than thirty (30) days prior to the end of the Initial Term or any Extension Term. a. Termination. Notwithstanding the foregoing, this Agreement may be terminated by either party immediately upon written 10 notice if the other party: (i) becomes insolvent or ceases doing business for a period greater than ninety (90) days, or (ii) materially breaches any of its obligations under this Agreement and fails to cure such breach within thirty (30) days following written notice to such party. b. Survival. Terms relating to limitations of liability, confidentiality, indemnification obligations, governing law, payment obligations, and any other term that by its nature ought to survive termination will survive the expiration or termination of this Agreement. c. Consequence of Termination. Upon the effective date of termination of this Agreement (i) Boopsie will immediately cease providing the Hosted Service to Customer, (ii) Customer's license to use the Custom Client and the Hosted Services will cease; (hi) any and all payment obligations of Customer incurred prior to the date of termination will immediately become due; (iv) within thirty (30) days of such termination each party will return all copies of Confidential Information of the other party in its possession except as required to comply with any applicable legal or accounting record keeping requirement; (v) upon Customer's written request, Boopsie will acknowledge to Customer in writing that all active Customer Data has been removed and deleted from its systems within ten (10) days of termination; and (vi) Boopsie will delete all backed up Customer Data from Boopsie' systems within 30 days of termination of this Agreement. 16. PUBLICITY AND PROMOTION. The parties may issue one or more mutually agreed upon press releases at mutually agreed times. Boopsie may include Customer's name in a list of its customers Customer shall prominently promote the Custom Client download on its website and other online and offline communication channels as appropriate. 17. MISCELLANEOUS. This Agreement represents the complete agreement regarding the subject matter of this Agreement and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties. a. Amendments. This Agreement may be amended only by a written document executed by a duly authorized representative of each party. No purchase order, other ordering document or any hand written or typewritten text which purports to modify or supplement the printed text of this Agreement or any Product Order Form shall add to or vary the terms of this Agreement unless signed or initialed by authorized representatives of each party b. Unenforceable Provisions. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make the remainder of the Agreement enforceable. c. Notices. All notices given under this Agreement shall be in writing, and shall be delivered by a form of mail to the addresses listed on the Product Order Form, which provides receipt evidencing such delivery. d. Waiver. No waiver by either party hereto of any breach of any provision herein shall constitute waiver of any other provision nor shall such waiver constitute consent that the breach may continue or that any other breach will be waived.. Unless stated otherwise in this Agreement, the remedies provided are cumulative, and are in addition to any other remedies available at law or equity. e. independent Contractors. The parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between the parties. f. Counterparts. This Agreement may be executed in several counterparts, all of which taken together constitute one single agreement between the parties. 11 g. Assionment. Neither party shall assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other, which consent shall not be unreasonably withheld, and any attempt to do so without such consent will be void; provided, however, that, upon written notice to the other party, (i) either party may assign its rights or obligations hereunder to a parent corporation or an affiliate in which the assigning party or its parent corporation holds a Controlling interest without the consent of the other party and (ii) either party may assign its rights and obligations hereunder in connection with any transaction involving the merger, acquisition or consolidation of the assigning party or the sale of all or substantially all of its assets without the consent of the other party. This Agreement shall inure to the benefit of and bind successors and permitted assigns of the parties. h. Force Maieure. Neither party will be liable for any failure or delay in the performance of its obligations (except the obligation to pay money) hereunder on account of events beyond the reasonable control of such party, which may include, without limitation, govemment action, acts of God, war, terrorism, fire, flood, earthquakes or other natural disasters denial -of -service attacks or communication line or power failures or matenal shortages or labor conditions; provided that such party gives prompt notice to the other party, and use its commercially reasonable efforts to resume performance as soon as reasonably practicable. i. Government Rights. The Custom Client is "commercial computer software," as such term is used in FAR 12.212 Any use, duplication, or disclosure of the Custom Client or any other Software by or on behalf of the U.S. Govemment is subject to restrictions as set forth in this Agreement. Manufacturer is Boopsie. 3rd Party Approval Customer understands that the Custom Client may require approval and acceptance by a third party before being placed in an application store. For example, Apple, Inc approves any software included in the AppStore. While Boopsie has extensive experience in getting applications based upon the software in the Custom Client accepted by such third party application stores, such third party stores exercise complete control over what is approved Therefore, Boopsie cannot and does riot guarantee that third parties asserting such control over their application stores will accept the Custom Client. If this occurs, Boopsie will provide a download site for the Clients for all platforms that support direct download of the application. All fees will be due and payable as stated in this Agreement regardless of any third party application store acceptance or rejection. SCHEDULE C MOBILE OPERATING SYSTEMS • Android - 1.6 or greater • BlackBerry 4.0 or greater • Java CLDC1.1 MIDP 2.0 • Palm OS 5 4 and greater • Symbian S60 3rd Edition • Windows Mobile 5.0 — 6.5 • iPhone 3.2 and greater (subject to Customer acquiring an Apple Developer account for iOS development, which currently will cost the customer an additional $99.00 per year, subject to Apple approval) SCHEDULE D OPTIMUM LIBRARY APP PRODUCT FEATURES The Customer Boopsie Optimum library app includes the features listed below. Customer can decide to exclude features. • • • • • • • • • • • • • Library Locator Catalog Search using Smart Prefix Search ILS Integration for holds, renewals Ask A Librarian Reading Lists Events, Calendar Blogs and Twitter Additional customer -generated content through 'Boopsie Docs' admin module BookLook P ublisher Reviews — integration with library supplied book review providers Overdnve Access S panish language support U sage statistics For BookLook, the Customer's ILS must support an ISBN search or the MARC records must contain the ISBN. For Publisher Reviews, library is responsible for securing access to the review source. For Overdrive Access — library is responsible for providing access to their existing Overdrive service SCHEDULE E TRADEMARKS BOOPSIE: 1. Boopsie 2. Mobile Find 3. Smart Prefix CUSTOMER* 1. All Customer trademarks SCHEDULE F END USER LICENSE AGREEMENT PREAMBLE IMPORTANT' THIS IS THE LICENSE AGREEMENT THAT YOU ARE REQUIRED TO ACCEPT BEFORE INSTALLING AND USING BOOPSIE, INC. SOFTWARE CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT BEFORE PROCEEDING WITH THE DOWNLOADING AND/OR INSTALLATION OF THIS SOFTWARE PRODUCT. YOU ARE NOT PERMITTED TO DOWNLOAD AND/OR INSTALL THIS SOFTWARE PRODUCT UNTIL YOU HAVE AGREED TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT AND CHOOSE NOT TO INSTALL THIS SOFTWARE PRODUCT TO OBTAIN A REFUND OF THE AMOUNT PAID FOR THIS LICENSE, PROMPTLY RETURN THIS SOFTWARE PRODUCT IN UNMODIFIED FORM TOGETHER WITH WRITTEN CERTIFICATION THAT THE ORIGINAL SOFTWARE PRODUCT AND ANY COPIES MADE HAVE BEEN RETURNED, TO EITHER BOOPSIE, INC. OR THE AUTHORIZED DISTRIBUTOR WHO PROVIDED THE SOFTWARE PRODUCT TO YOU, AS APPLICABLE, NO LATER THAN 14 DAYS FROM YOUR RECEIPT OF THE SOFTWARE PRODUCT. BY ACCEPTING THIS LICENSE AGREEMENT YOU ALSO REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO ACCEPT THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT ON BEHALF OF YOUR EMPLOYER THIS AGREEMENT IS ENTERED INTO BY BOOPSIE, INC. ('BOOPSIEINC') AND YOU AS END USER OF THE SOFTWARE PRODUCT ('END USER"). 1. The Software Product The subject of this license is the BOOPSIEINC software product in which this license is embedded and any related updates, provided to END USER, including computer software and, where applicable, associated media, printed materials and online or electronic documentation ("Software Product"). 2. License Grant END USER is hereby granted, upon the following terms and conditions including payment of any applicable license fee, a non-exclusive non -transferable license, for its internal, end -use purposes only (excluding the commercialization of information technology products), in the ordinary course of END USER'S business to: 2.1. If a single user license is purchased or otherwise agreed to, install and use the Software Product on a single device only (and not on a computer, network or a server) 2.2. If a server license is purchased or otherwise agreed to, install and use the Software Product on a single designated server being a single computer which provides shared services to multiple single computers finked to the server, subject to the number of concurrent users agreed to in writing by BOOPSIEINC, in each case where such single device or server is owned, leased or otherwise substantially controlled by END USER If END USER desires to use this Software Product on more than a single device (not being a server) or server additional licenses must be obtained from BOOPSIEINC for each device or server upon which or where the Software Product is to be used. 16 END USER agrees that any feedback provided to BOOPSIEINC, which may include bug reports conferences with BOOPSIEINC representatives and/or written evaluations, in relation to the Software Product will become the property of BOOPSIEINC and that BOOPSIEINC will have no confidentiality obligations with respect to such feedback. END USER agrees that BOOPSIEINC and its designees will be free to copy, modify, create denvative works, publicly display, disclose, distribute, license and sublicense through multiple tiers of distribution and licensees incorporate and otherwise use the feedback, including derivative works thereto, for any and all commercial and non-commercial purposes. END USER is permitted to make one copy of this Software Product into machine-readable form for backup purposes only however END USER may not copy the printed materials that are part of this Software Product. END USER must mark the backup copy media of the Software Product as "backup". The backup copy of the Software Product is subject to the provisions of this Agreement, and all titles, trademarks, copyright notices and other legends shall be reproduced in the backup copy. 3. License Restrictions THE SOFTWARE PRODUCT WHICH IS THE SUBJECT OF THIS AGREEMENT, IS LICENSED TO END USER, NOT SOLD. END USER MAY NOT USE OR COPY THE SOFTWARE PRODUCT, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS LICENSE END USER MAY NOT MODIFY, TRANSLATE, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR CREATE DERIVATIVE WORKS OF THE SOFTWARE PRODUCT OR OTHERWISE ATTEMPT TO (A) DEFEAT, AVOID, BY-PASS, REMOVE, DEACTIVATE OR OTHERWISE CIRCUMVENT ANY SOFTWARE PROTECTION MECHANISMS IN THE SOFTWARE PRODUCT INCLUDING, WITHOUT LIMITATION, ANY S UCH MECHANISM USED TO RESTRICT OR CONTROL THE FUNCTIONALITY OF THE SOFTWARE PRODUCT OR (B) DERIVE THE SOURCE CODE OR THE UNDERLYING IDEAS, ALGORITHMS, STRUCTURE OR ORGANIZATION FORM OF THE SOFTWARE P RODUCT END USER WILL AT ALL TIMES, INCLUDING DURING AND AFTER THE TERM OF THIS LICENSE, KEEP THE SOFTWARE PRODUCT ALL INFORMATION RELATING TO END USER'S USE OF THE SOFTWARE PRODUCT INCLUDING ANY BENCHMARKS, PERFORMANCE RESULTS AND OTHER INFORMATION, CONFIDENTIAL UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING BY BOOPSIEINC. The Software Product is provided with Restricted Rights. Use, duplication or disclosure by the U S. Government is subject to restrictions set forth in subparagraph (c)(1) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of Commercial Computer Software - Restricted Rights at 48 CFR 52 227-19, as applicable. Manufacturer is Boopsie, Inc., Fenwick & West LLP 801 Califomia St, Mountain View, CA 94041. 4. Ownership The Software Product is protected by copynght and is proprietary and confidential to BOOPSIEINC. All right title and interest in and to the Software Product (including associated intellectual property rights) are and will remain vested in BOOPSIEINC or BOOPSIEINC's affiliated companies or licensors. These rights are protected by national and other laws and international treaties. END USER acknowledges that no rights, license or interest to any BOOPSIEINC trademarks are granted hereunder. 17 5. Termination Without prejudice to any other rights, BOOPSIEINC may terminate this Software License Agreement if you fail to comply with the terms and conditions of this Software License Agreement In such event, you must destroy all copies of the Software Product and all of its component parts. 6 Limitation of Liability THE SOFTWARE PRODUCT IS PROVIDED "AS IS' WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITATION, TO THE FULLEST EXTENT ALLOWABLE BY LAW, END USER ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE PRODUCT. THIS EXCLUSION OF ALL WARRANTIES OR CONDITIONS EXTENDS WITHOUT LIMITATION TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY NON -INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE THE SOFTWARE PRODUCT CONTAINS PRE-RELEASE CODE MAY NOT BE FULLY FUNCTIONAL AND MAY BE SUBSTANTIALLY MODIFIED IN FURTHER DEVELOPMENT. BOOPSIEINC DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE PRODUCT WILL MEET END USER'S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE PRODUCT WILL BE ERROR FREE OR UNINTERRUPTED. BOOPSIEINC CAN PROVIDE NO ASSURANCE THAT IT WILL EVER PRODUCE OR MAKE AVAILABLE A GENERAL RELEASE VERSION. IN NO EVENT SHALL BOOPSIEINC BE LIABLE UNDER ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS, LOST BUSINESS REVENUE OTHER ECONOMIC LOSS OR ANY LOSS OF RECORDED DATA, EVEN IF BOOPSIEINC HAS BEEN ADVISED OF THE POSSIBILITY THEREOF ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT. 7. General Provisions The limitations of liability and ownership rights of BOOPSIEINC contained herein and END USER's obligations following termination of this Agreement shall survive the termination of this Agreement for any reason. END USER may not sublicense, assign, share, pledge, rent or transfer any of its rights under this Agreement in relation to the Software Product or any portion thereof including documentation. No amendments or modifications may be made to this Agreement except in wnting signed by both parties. If one or more provisions of this Agreement are found to be invalid or unenforceable, this Agreement shall not be rendered inoperative but the remaining provisions shall continue in full force and effect. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and merges all prior communications except that a 'hard -copy" form of license agreement relating to the Software Product previously agreed to in writing by BOOPSIEINC and END USER shall supersede and govem in the event of any conflicting provisions. This Agreement shall be governed by the laws of the State of California SCHEDULE G ADDITIONAL TERMS AND CONDITIONS 1. SCOPE OF SERVICES Boopsie hereby agrees to provide the City with a license and consulting services for a mobile application for the City's Library. 2. TERM This Agreement shall commence upon the date that both the City and Boopsie have executed this Agreement ("Effective Date') and shall continue in full force and effect for a period of one year from the Effective Date ("Initial Term"), unless terminated earlier in accordance with the provisions of this Agreement. The Agreement contains two one year options to renew if both the City and Boopsie agree in writing to the one year renewals. 3. COMPENSATION The City shall pay Boopsie an amount not to exceed $24,990.00, which includes the $8,995.00 one-time implementation fee and the $15,995.00 one-year subscription fee, for the o ne-year Agreement in accordance with the provisions of this Agreement and the Payment Schedule attached as Schedule "B", which is incorporated for all purposes herein. If the City and Boopsie agree to exercise one or both of the two one-year renewal options, then the City shall pay Boopsie a sum not to exceed $15,995.00 for each one-year renewal subscription. Boopsie shall not perform any additional services for the City not specified by this Agreement u nless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Boopsie not specified by this Agreement u nless the City first approves such expenses in writing. 4. ADDITIONAL TERMINATION TERMS 4.1 Non -appropriation of Funds In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Boopsie of such occurrence and this 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. 4.2 Duties and Obligations of the Parties In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Boopsie for services actually rendered up to the effective date of termination and Boopsie shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION Boopsie hereby warrants to the City that Boopsie has made full disclosure in writing of 19 any existing or potential conflicts of interest related to Boopsre's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Boopsie hereby agrees immediately to make full disclosure to the City in writing. Boopsie for itself and its officers, agents and employees, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. Boopsie shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Boopsie shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. 6. RIGHT TO AUDIT Boopsie agrees that the City shall, until the expiration of three (3) years after final payment under this contract, or the final conclusion of any audit commenced dunng the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Boopsie involving transactions relating to this Contract at no additional cost to the City. Boopsie agrees that the City shall have access during normal working hours to all necessary Boopsie facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Boopsie reasonable advance notice of intended audits. 7. INSURANCE Boopsie shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 7.1 Coverage and Limits (a) Worker's Compensation - Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Disease - policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1 01 et seq Tex Rev. Civ. Stat.) and minimum policy limits for Employers Liability of $100 000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee (b) Technology Liability (E&O) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Coverage shall include but not be limited to, the following: (i) Failure to prevent unauthorized access (ii) Unauthonzed disclosure of information 20 (iii) Implantation of malicious code or computer virus (iv) Fraud, Dishonest or Intentional Acts with final adjudication language Technology coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Technology E&O. Either is acceptable if coverage meets all other requirements. Any deductible will be the sole responsibility of the Prime Vendor and may not exceed $50,000 without the written approval of the City Coverage shall be claims -made, with a retroactive or prior acts date that is on or before the effective date of this Contract. Coverage shall be maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance shall be submitted to the City to evidence coverage. 7.2 General Reauirements (a) Certificates of insurance shall document the City of Fort Worth its' officers, Employees and Volunteers, as "additional insured" on all liability policies. (b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. (c) The Boopsie shall furnish the City a minimum of thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days notice shall be acceptable in the event of non- payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. (e) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that the Boopsie has obtained all required insurance shall be delivered to the City prior to Boopsie proceeding with any work pursuant to this Agreement. 8. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS Boopsie agrees that in the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws, ordinances, rules and regulations and that any work it produces in connection with this agreement will also comply with all applicable federal state and local laws, ordinances, rules and regulations. If the City notes Boopsie of any violation of such laws, ordinances, rules or regulations, Boopsie shall immediately desist from and correct the violation. 21 9. NON-DISCRIMINATION COVENANT Boopsie, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Boopsie's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by Boopsie, its personal representatives, assigns, subcontractors or successors in interest, Boopsie agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 10. NOTICES Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand -delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: City of Fort Worth Attn: Susan Alanis, Assistant City Manager 1000 Throckmorton Street, 3'd Floor Fort Worth TX 76102-6311 Facsimile (817) 392-8654 11. SOLICITATION OF EMPLOYEES Boopsie, Inc. Attn Greg Carpenter, CEO 464 Linden Street Laguna Beach, CA 92651 Facsimile: (949) 715-2442 Neither the City nor Boopsie shall during the term of this agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this agreement, without the prior written consent of the person's employer. 12. GOVERNMENTAL POWERS/IMMUNITIES It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 13. NO WAIVER The failure of the City or Boopsie to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Boopsie s respective right to insist upon appropriate performance or to assert any such right on any future occasion. 14. GOVERNING LAW / VENUE This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northem District of Texas, Fort Worth Division. 22 15. SEVERABILITY If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 16. HEADINGS NOT CONTROLLING Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. 17. REVIEW OF COUNSEL The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto 18. AMENDMENTS No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument which is executed by an authorized representative of each party. 19. ENTIRETY OF AGREEMENT This Agreement, including the schedule of schedules attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Boopsie, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 20. SIGNATURE AUTHORITY The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. 21. COUNTERPARTS This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes be deemed an original, but all such counterparts shall together constitute one and the same instrument. 22. NETWORK ACCESS Boopsie and/or any of its employees, officers, agents, servants or subcontractor agree 23 that they will not be accessing the City's computer network. However, if Boopsie, and/or any of its employees, officers, agents, servants or subcontractors (for purposes of this section "Boopsie Personnel"), requires access to the City's computer network in order to provide the services herein, Boopsie shall execute and comply with the City's Network Access Agreement. If executed, the City's Network Access Agreement would become Schedule "H" and would be incorporated herein for all purposes. 23. IMMIGRATION NATIONALITY ACT The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Boopsie shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Boopsie 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 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement Boopsie 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. Boopsie shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Boopsie shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Boopsie. 24. PUBLIC INFORMATION ACT Boopsie understands and acknowledges that the City is a public entity under the laws of the State of Texas and as such, all documents held by the City are subject to disclosure under Chapter 552 of the Texas Government Code. Boopsie shall clearly indicate to the City what information it deems proprietary. If the City is required to disclose any documents that may reveal any Boopsie Proprietary Information to third parties under the Texas Government Code, or by any other legal process, law, rule or judicial order by a court of competent jurisdiction, the City will notify Boopsie prior to disclosure of such documents, and give Boopsie the opportunity to submit reasons for objections to disclosure. The City agrees to restrict access to Boopsie s information to those persons within its organization who have a need to know for purposes of management of this Contract. The City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information. The City will use its best efforts to secure and protect Company's information in the same manner and to the same degree it protects its own proprietary information; however, the City does not guarantee that any information deemed proprietary by Boopsie will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Contract.