HomeMy WebLinkAboutContract 43586 CITY SECRUARY
CONTRACT NO. 1�u
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 Form
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-optimum Library App Product Features
S. Schedule E-Trademarks
7. Schedule F-End User License Agreement
8. Schedule G--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.
PRODUCT ORDER FORM
Library optimum Feature Set
CUSTOMER
Fort Worth Library
500 W. 3rd Street
Fort Worth, TX 78102
Customer Contact: Amy Bledsoe
Digital Resources Manager,
am Y.bledsoe @fortworthtexas.g ov
817.392.8049
Boopsie Contact: James Cowers
SVP Business Development
james@boopsie.com
(850)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
FTs WORT",TX 09-13-12 PO4 :46 I N
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 su0ject 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 Customers 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 terns 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]
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement in multiples
this day of ' � � 20121
as of the Effective D e.
ACCEPTED AND AGREED: BOOPSIE, INC.
CITY OF FORT WORTH:
B
G r ter
• i cutive icer
By: 'Of- '00/
Charles Daniels
sistant City Manager
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Date: 0 2 �°'moo° °p p��
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00000000 po,
By:
Mary r6�/
City Secr
APPROVED TO FORM AND
LEGALI
By:
Cheri K. Kyles
Assistant City Attorney
CONTRACT AUTHORIZATION:'
M&c: a
Date Approved.
3
OFFICIAL RecoRD
CITY SECRET'
r,T.WORIVIs TX
L
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
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SCHEDULE B
BOOPSIE LICENSE AND HOSTED SERVICE TERMS AND CONDITIONS
1. DEFINITIONS infrastructure used to access the Hosted
Service.
"Activated Custom Client" means the "Trademarks" means those Boopsie and
downloaded Custom Client (as defined below) Customer trademarks identified on Schedule
that is actually used by an End User at least E.
one time. "Documentation" means the online help files
"Agreement" means collectively (i) the initial and other content relating to use of the Hosted
Product Order Form, Schedules and any Service made available by Boopsie on the
follow-on Product Order Forms; (ii) the Network.
License and Hosted Service Terms; and (iii) "Effective Date" is set forth on the initial
any addenda signed by both Boopsie and Product Order Form.
Customer. "Extension Term" means each additional
"Confidential Information" means all renewal period, which shall be for a period of
information described in Section g. one year, for which this Agreement is
"Control"" means the possession, directly or extended pursuant to Section 15.
indirectly, of the power to direct or cause the "Hosted Service" means collectively the
direction of the management and operating Custom Client, any software updates,
policies of an entity. documentation and any support or other
"custom client" means the Customer- services that support the Custom Client to
branded version of the Boopsie client software deliver the Customer Features listed in
that acts as the input and display mechanism Schedule D.
for the interactive search of Customer's "Initial Term" means the initial license term
information that is directly downloaded to the specified on the Product order Form,
mobile devices as set forth in Schedule C. commencing on the Effective Date.
"Customer includes the Customer whose "Network" is the hosted network that is
name is set forth in the Product Order Form provided by Boopsie.
and any affiliated entity which Controls, is "Product order Form" means Boopsie'
Controlled by, or is under common Control Product Order Form or other ordering
with Customer, provided all such entities document (e.g. Customer's Purchase order)
ordering or using Boopsie products or the that (i) specifies the products or services
Hosted Service have agreed to be bound by purchased by Customer; (ii) references this
the terms and conditions of this Agreement. Agreement; and (iii) is signed or initialed by
"Customer Features" are features identified authorized representatives of both parties.
on Schedule D. "Scheduled Down Time" means the total
"`customer contact" means Customer's staff time during which Customer is not able to
member who is knowledgeable about access the Hosted Services due to planned
Customer Equipment and Customers use of maintenance.
the Hosted Service. "Software Updates" means updates,
"Customer Data" mean all text, files, data, modifications, or new releases of the Boopsie
output, programs, files, or other information or client software or hosted services that
material that Customer provides or uses in Boopsie generally makes available via the
conjunction with the Custom Client or Hosted Network at no additional charge to its
Service. customers who are current in payment of
"Customer Equipment" means Customer's Subscription Fees. Software Updates may be
computer hardware, software and network used in accordance with the terms and
restrictions relating to Software hereunder.
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Software Updates do not include products, necessary to provide support to End Users;
modules or options that are designated by and (iii) to reproduce the Custom Client solely
Boopsie as new products, modules or options as necessary in connection with exercising the
for which Boopsie charges a separate fee. rights granted in the preceding clauses (i) and
"Subscription Fees" means the fees paid by (ii)of this Section 2 b.
Customer for the right to use the Hosted c. E U LA for Service and receive Support during the Custom Client. All End Users to
applicable Term. whom Customer distributes the Custom Client
"System Availability" means the a must be bound by, and Customer will not
percentage distribute the Custom Client to an End
of total time during which the Hosted Service Y User
is available to be accessed b Customer, not who has not expressly accepted, the terms
y and conditions of the Boopsie EU LA, whether
including the Scheduled Down Time or down the E Boopsie
time required for emergency maintenance p U LA is incorporated by
reference in Customer's end user license
outside the Scheduled Down Time nods.
"Term"' agreement or linked to from Customer's end
Term means the Initial Term and any user license agreement or otherwise.
Extension Term. g e e. The
"Work Product" means all work includin Boopsie EULA is attached hereto on Schedule
� g F.
any tools, materials, derivative works and
modifications made to the Boopsie client d. Customer License of Custom Data and
software or Documentation) used, developed Trademarks. Customer grants to Boopsie a
or created by Boopsie for Customer during the non-exclusive license during the term of this
course of providing the Hosted Services, Agreement to use the Customer Data and
Custom Client, Support, consulting or any Customer Trademarks only as necessary to
other services to Customer. Work Product provide the Custom Client and Hosted
does not include Customer Data. Services to Customer pursuant to this
Agreement.
2. LICENSE GRANT 3. LICENSE RESTRICTIONS. Customer
a. Hosted Services. Subject to the terms of acknowledges that the Custom Client, Hosted Services, Software Updates and Network
this Agreement, Boopsie hereby grants (hereinafter collectively referred to as
Customer a limited term, non-sublicensable, Software"} contain trade secrets of Boopsie
non-transferable, and non-exclusive license to p
access and s the Hosted Service in and its licensors and, in order to protect such
c a use
accordance with the Documentation solely for trade secrets and other interests that Boopsie
and its licensors have in the Boopsie
Customers internal business purposes. Software, Customer agrees not to
Authorized users include Customer disassemble, decompile or reverse engineer
employees and Customer subcontractors, any of the Boopsie Software, or permit any
agents, and Boopsie, provided such third party to do so, except, and solely to the
subcontractors, agents, and Boopsie's use the extent, if any, that applicable local law
Hosted Service solely on behalf of Customer requires that such activities be permitted.
in accordance with this Agreement_ Except as expressly authorized by this
b. Custom Client License. Subject to Agreement, Customer will not: (i) copy or
Customers compliance with the terms and reproduce the Software, in whole or in part
conditions of this Agreement (including, except as may be permitted under this
without limitation, Section 2.c below), Boopsie Agreement; (ii) modify the Software; or (iii)
grants to Customer a non-exclusive license provide or make the functionality of the
during the term of this Agreement: (i) to Software available to third parties except as
distribute the Custom Client via download for may be permitted by this Agreement.
other means such as CD) directly to End Customer will reproduce on each copy it
Users; (ii) to use the Custom Client as makes of the Custom Client, and not alter,
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remove or obscure, the Intellectual Property writing by the parties, all license, right or
Rights notices of Boopsie and its licensors, interest to Work Product shall be the property
that may appear on the Custom Client or any of Boopsie. Customer retains all right, title and
Software provided to Customer. interest to Customer Trademarks and
4. CUSTOMER OBLiGATIONS. Customer Data.
a. Customer Service Related. Customer 6. FEES. The Implementation Fee and the
will at all times: (i) provide and maintain (or Annual Subscription Fee and their payment
have provided and maintained) a content due dates are set forth on Schedule A.
delivery system and the computer server(s) on Boopsie may change or increase the Fees it
which the Customer Data is stored and made charges Customer for the Customer Features
available to Boopsie to provide the Hosted after the Initial Term ends.
Service; (ii) cooperate with and assist Boopsie
and provide Boopsie with access to such a. Collection. All fees are payable in US
information and Customer Data as may be dollars. Except as expressly provided in this
reasonably required by Boopsie in order to Agreement, fees specified on a Product Order
implement and provide the Hosted Service; Form are non-refundable. Customer shall pay
and (iii) use commercially reasonable efforts any and all applicable taxes and duties
to prevent unauthorized access to, or use of, imposed as a result of Customer's purchase
the Hosted Service, the Custom Client or any of products or services under this Agreement,
other Software and will notify Boopsie except for taxes based on Boopsie's income.
promptly of any such unauthorized access or When Boopsie has the legal obligation to pay
use. or collect such taxes, the appropriate amount
b. Equipment and Telecommunications shall be invoiced to and paid by Customer
and Internet Services. Boopsie is not unless Customer provides Boopsie with a
responsible for (i) obtaining and maintaining valid tax exemption certificate authorized by
any Customer Equipment or any ancillary the appropriate taxing authority. Customer
services needed to connect to, access or will reimburse Boopsie for all reasonable
otherwise use the Hosted Service; (ii) paying travel and other related expenses pre-
all third-pa rty access charges (e.g., ISP, authorized by Customer and incurred by
Boopsie in the performance of an Support or
telecommunications, etc.) incurred while using p y pp
the Hosted Service; and (iii) ensuring that the consulting services as more particularly
described in Schedule A. All consulting
Customer Equipment and any ancillary g
services are compatible with the Hosted services shall be performed to accordance
p with a statement of work signed by Boopsie
Service and comply with all configuration and Customer that describes the services to
req u i rements set forth in the Documentation. performed and references this Agreement.
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C. Customer Features Data. Customer
shall provide to Boopsie all data necessary to 7. SUPPORT. Boopsie shall provide Support
create all features listed in Schedule D. at no additional charge provided Customer is
current in payment of the applicable
5. OWNERSHIP. Boopsie (or its licensors) Subscription Fees. Support also includes
retains all patent, copyright, trademark and Software Updates. Boopsie shall have no
other intellectual property rights in the Hosted obligation to support problems caused by (i)
Service, the Software, and the Custom Client Customer's negligence or unauthorized
(except for Customer Data or Customer modification of any part of the Hosted Service;
Trademarks) and any work product that may (ii) Software in any form or configuration other
be created for Customer pursuant to this than as provided by Boopsie; or (iii) other
Agreement. There are no implied rights and causes external to the Hosted Service or
all other rights not expressly granted herein beyond the reasonable control of Boopsie. In
are reserved. Unless otherwise agreed to in addition, Boopsie shall have no obligation to
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support the installation or maintenance of time of disclosure. The receiving party shall
applications or devices external to the Hosted protect the disclosing party's Confidential
Service. Information with the same degree of care that
i# regularly uses to protect its own Confidential
8. CUSTOMER INDEMNITY. Customer is Information from unauthorized use or
responsible for (i) all Customer Data that disclosure, but in no event less than a
Customer uploads, posts, transmits, or reasonable degree of care. The receiving
otherwise disseminates using the Hosted party shall use the Confidential Information
Service; (ii) maintaining secure access to the only for the limited purpose of performing its
Hosted Service; (iii) maintaining reasonable obligations under this Agreement.
security mechanism with respect to issuance Confidential Information shall not be provided
of username and password information; (iv) or disclosed to anyone except those
any and all activities that occur under employees or contractors of the receiving
Customers Hosted Service account; and (iv) party with a need to know under this
using the Hosted Service solely for lawful Agreement. Confidential Information and any
purposes and in compliance with all applicable and all authorized copies thereof shall remain
laws including, without limitation, copyright, the property of the disclosing party and
trademark, privacy, obscenity, defamation, promptly shall be destroyed or returned if
and anti-spamming, laws. Customer requested by the disclosing party.
acknowledges that Customer is responsible
for complying with privacy laws that apply to Notwithstanding any provision contained in
the collection, use and dissemination of this Agreement, neither party shall be required
Customer Data. Customer will notify Boopsie to maintain in confidence any of the following:
immediately of any unauthorized use of (i) information that, at the time of disclosure to
Customer's Hosted Service account or any the receiving party, is in the public domain; (ii)
other breach of security regarding Customer's information that, after disclosure, becomes
Hosted Service account. Customer will at its part of the public domain without restriction,
expense defend and indemnify Boopsie except by breach of this Agreement; (iii)
against and pay all costs and settlement or information that was in the receiving party's
damages awarded against Boopsie resulting possession at the time of disclosure, and
from a third party claim related to any breach which was not acquired, directly or indirectly,
of Customer's obligations under this Section from the disclosing party; (iv) information that
8, as allowed by law. the receiving party can demonstrate resulted
from its own research and development,
9. CONFIDENTIALITY. Confidential independent of and without reference to
Information includes, without limitation, the disclosure from the disclosing party; (v)
Documentation, Software Updates, results of information that the receiving party receives
Software or Hosted Service comparative from third parties, provided such information
performance benchmarks, passwords was not obtained by such third parties from
provided to Customer for Hosted Service the disclosing party on a confidential basis; or
access, Customer Data, information related to (vi) information that is produced in compliance
past, present or future research, development with applicable law or a court order, provided
or business affairs, any proprietary products, the other party is given reasonable notice of
materials or methodologies, or any other such law or order and an opportunity to
information that which by its nature is normally attempt to preclude or limit such production.
and reasonably considered confidential or
provides the disclosing party with a 10. LIMITED HOSTED SERVICES
competitive advantage. Confidential WARRANTY. Boopsie warrants that for the
information shall be marked as confidential or Term of this Agreement (i) the Hosted Service
proprietary or, if disclosed verbally, shall be will perform in all material respects in
identified as confidential or proprietary at the accordance with the Documentation; and (ii)
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any consulting services will be provided in a Hosted Service performance or System
professional and workmanlike manner. As Availability to be other than as warranted is
Customer's sole and exclusive remedy and due to (i) use of the Hosted Service outside
Boopsie's entire liability for any breach of the the scope described in the Documentation; (ii)
foregoing warranty, Boopsie will either (a) fix, Customer Equipment and/or third party
provide a work-around or otherwise remedy a software, hardware or network infrastructure
problem that results in the Hosted Service outside of the data center supplied by Boopsie
being nonconforming; or (b) reperform any and/or not under the direct control of Boopsie;
nonconforming consulting services so that the (iii) failure of the external internet beyond
Hosted Service or consulting services operate Boopsie's Network; (iv) electrical or intemet
as warranted. If, after thirty (30) days from the access disruptions; (v) any actions or
date of receipt of written notice of any non- inactions of Customer or any other third party
conforming Hosted Service or consulting not under the direct control of Boopsie; (vi)
services from Customer, Boopsie does not fix attacks (i.e. hacks, denial of service attacks,
the non-conforming Hosted Service or re` malicious introduction of viruses and disabling
perform the nor}-conforming consulting devices) caused by third parties; or (vii)
services, Boopsie will either (A) refund a pro- events of force majeure.
rata portion of the Subscription Fees from the 13. NO OTHER WARRANTIES. TO THE
date of Customer's notice of the Hosted MAXIMUM EXTENT PERMITTED BY
Service non-conformance through the APPLICABLE LAW, THE EXPRESS
remainder of the applicable Term; or (B) WARRANTIES SET ABOVE IN SECTIONS
refund fees paid for the nonconforming 10 AND 11 ARE EXCLUSIVE AND IN LIED
consulting services. OF ALL OTHER WARRANTIES OR
CONDITIONS, INCLUDING ANY IMPLIED
11 VIL
. LIMITED SERVICE LEVEL WARRANTY. CONDITIONS, OF MERCHANTABILITY,
Boopsie will undertake commercially FITNESS FOR A PARTICULAR PURPOSE
reasonable efforts to provide Customer with AND NON-INFRINGEMENT, AND ANY
100% System Availability. The System will WARRANTIES ARISING OUT OF COURSE
have periodic Scheduled Downtime to, for OF DEALING OR USAGE OF TRADE.
example, maintain or improve system Without limiting the generality of the foregoing,
performance. Boopsie will at times have to run Boopsie disclaims any responsibility for
batch process that may slow down Hosted damages or losses incurred by Customer or
Service performance. Boopsie will make any End User resulting from use of Hosted
commercially reasonable efforts to remedy Services or the Custom Client or from any
any performance problem. if Boopsie fails to content downloaded through use of the
correct such performance problem within 10 Boopsie Service or the Custom client.
Y p
days from the date of Boopsie's receipt of P
written notice from Customer, as Customer's 14. LIMITATION OF LIABILITY. EXCEPT (I)
sole and exclusive remedy and Boopsie's AS PROVIDED IN SECTION S; (ll) FOR
entire liability for such failure to correct such DAMAGES RELATED TO CLAIMS BASED
performance problem, Customer may ON A BREACH OF ITS OBLIGATIONS SET
terminate this Agreement pursuant to Section FORTH IN SECTION 10 OR (Ill) DAMAGES
15 and Boopsie will refund a pro rata portion RELATED TO CLAIMS BASED ON ITS
of the Subscription Fees from the time of GROSS NEGLIGENCE OR WILLFUL
termination through the remainder of the MISCONDUCT, BOOPS I E'S LIABILITY FOR
applicable Term. DIRECT DAMAGES UNDER THIS
12. WARRANTY EXCEPTIONS. The Halted AGREEMENT SHALL IN NO EVENT
EXCEED THE SUBSCRIPTION FEES PAID
Service and System Availability warranties set BY CUSTOMER TO BOOPSIE FOR THE
forth in Sections 10 and 11 are void to the
extent any problem which results in the
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HOSTED SERVICE DURING THE TWELVE notice if the other party: (i) becomes insolvent
(12)MONTHS PRECEDING THE CLAIM. or ceases doing business for a period greater
than ninety (90) days; or (ii) materially
a. EXCEPT FOR (1) DAMAGES RELATED TO breaches any of its obligations under this
CLAIMS THAT ARE THE SUBJECT OF Agreement and fails to cure such breach
INDEMNIFICATION UNDER THIS within thirty (30) days following written notice
AGREEMENT; (II) DAMAGES RELATED TO to such party.
CLAIMS BASED ON EITHER PARTY'S
BREACH OF ITS OBLIGA"T"IONS SET b. Survival. Terms relating to limitations of
FORTH IN SECTION 10; OR (111) DAMAGES liability, confidentiality, indemnification
RELATED TO EITHER PARTY'S obligations, governing law, payment
UNAUTHORIZED USE, DISTRIBUTION, OR obligations, and any other term that by its
DISCLOSURE OF THE OTHER PARTY'S nature ought to survive termination will survive
INTELLECTUAL PROPERTY, AND TO THE the expiration or termination of this
MAXIMUM EXTENT PERMITTED UNDER Agreement.
APPLICABLE LAW, IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR INDIRECT, c. Consequence of Termination. Upon the
INCIDENTAL, SPECIAL, CONSEQUENTIAL effective date of termination of this
OR PUNITIVE DAMAGES, INCLUDING BUT Agreement: (i) Boopsie will immediately cease
NOT LIMITED TO DAMAGES FOR LOSS OR providing the Hosted Service to Customer; (ii)
INACCURACY OF DATA, LOSS OF Customer's license to use the Custom Client
PROFITS OR REVENUE, BUSINESS and the Hosted Services will cease; (iii) any
INTERRUPTION, HOWEVER ARISING, and all payment obligations of Customer
EVEN IF IT HAS BEEN ADVISED OF THE incurred prior to the date of termination will
POSSIBILITY OF SUCH DAMAGES. immediately become due; (iv) within thirty (30)
days of such termination each party will return
b. NOTWITHSTANDING ANYTHING SET all copies of Confidential Information of the
OUT ABOVE OR OTHERWISE IN THIS other party in its possession except as
AGREEMENT, NOTHING IN THIS required to comply with any applicable legal or
AGREEMENT SHALL ATTEMPT TO LIMIT accounting record keeping requirement; (v)
OR EXCLUDE ANY LOSS OR DAMAGES upon Customer's written request, Boopsie will
ARISING FROM DEATH OR PERSONAL acknowledge to Customer in writing that all
INJURY CAUSED BY NEGLIGENCE. active Customer Data has been removed and
deleted from its systems within ten (10) days
15. TERM AND TERMINATION. This of termination; and (vi) Boopsie will delete all
Agreement is effective immediately on backed-up Customer Data from Boopsie'
execution of the Product Order Form and systems within 30 days of termination of this
unless sooner terminated by either party in Agreement.
accordance with this Section 15, shall remain 16. PUBLICITY AND PROMOTION. The
effective for the Term. After the Initial Term, if parties may issue one or more mutually
Customer is current in payment of all p y
A agreed upon press releases at mutually
applicable fees, this Agreement shaft agreed times. Boopsie may include
automatically extend for an Extension Term, Customer's name in a list of its customers.
unless terminated by either party by giving Customer shall
notice to the other a not less than thirty prominently promote the
p rtY Custom Client download on its website and
(30)days prior to the end of the Initial Term or other online and offline communication
any Extension Term. channels as appropriate.
a. Termination. Notwithstanding the 17. MISCELLANEOUS. This Agreement
foregoing, this Agreement may be terminated represents the complete agreement regarding
by either party immediately upon written the subject matter of this Agreement and
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supersedes all prior and contemporaneous g. Ass onment. Neither party shall assign or
agreements, understandings, negotiations and transfer this Agreement or any of its rights or
discussions, whether oral or written, of the obligations hereunder without the prior written
parties. consent of the other, which consent shall not
be unreasonably withheld, and any attempt to
a. Amendments. This Agreement may be do so without such consent will be void;
amended only by a written document provided, however, that, upon written notice to
executed by a duly authorized representative the other party, (i) either party may assign its
of each party. No purchase order, other rights or obligations hereunder to a parent
ordering document or any hand written or corporation or an affiliate in which the
typewritten text which purports to modify or assigning party or its parent corporation holds
supplement the printed text of this Agreement a Controlling interest without the consent of
or any Product Order Form shall add to or the other party and (ii) either party may assign
vary the terms of this Agreement unless its rights and obligations hereunder in
signed or initialed by authorized connection with any transaction involving the
representatives of each party. merger, acquisition or consolidation of the
assigning party or the sale of all or
b. Unenforceable Provisions. If any provision substantially all of its assets without the
of this Agreement is held to be unenforceable, consent of the other party. This Agreement
such provision shall be reformed only to the shall inure to the benefit of and bind
extent necessary to make the remainder of successors and permitted assigns of the
the Agreement enforceable. parties.
c. Notices. All notices given under this h. Force M jjeure. Neither party will be liable
Agreement shall be in writing, and shall be for any failure or delay in the performance of
delivered by a form of mail to the addresses its obligations (except the obligation to pay
listed on the Product Order Form, which money) hereunder on account of events
provides receipt evidencing such delivery. beyond the reasonable control of such party,'
which may include, without limitation,
d. Waiver. No waiver by either party hereto of govemment action, acts of God, war,
any breach of any provision herein shall terrorism, fire, flood, earthquakes or other
constitute waiver of any other provision nor natural disasters, denial-of-service attacks or
shall such waiver constitute consent that the communication line or power failures or
breach may continue or that any other breach material shortages or labor conditions;
will be waived.. Unless stated otherwise in provided that such party gives prompt notice
this Agreement, the remedies provided are to the other party, and use its commercially
cumulative, and are in addition to any other reasonable efforts to resume performance as
remedies available at law or equity. soon as reasonably practicable.
e. Independent Contractors. The parties L Government Rights. The Custom Client is
hereto are and shall remain independent "commercial computer software," as such term
contractors. Nothing herein shall be deemed is used in FAR 12.212. Any use, duplication,
to establish a partnership, Joint venture, or or disclosure of the Custom Client or any
agency relationship between the parties. other Software by or on behalf of the U.S.
f. Counte arts. This Agree ment may be Government is subject to restrictions as set
forth in this Agreement. Manufacturer �s
executed in several counterparts, all of which Baopsie.
taken together constitute one single
agreement between the parties. j. 3'd Party A roval Customer understands
that the Custom Client may require approval
and acceptance by a third party before being
placed in an application store. For example, asserting such control over their application
Apple, Inc. approves any software included in stores will accept the Custom Client. If this
the AppStore. While Boopsie has extensive occurs, Boopsie will provide a download site
experience in getting applications based upon for the Clients for all platforms that support
the software in the Custom Client accepted by direct download of the application. All fees
such third party application stores, such third will be due and payable as stated in this
party stores exercise complete control over Agreement regardless of any third party
what is approved. Therefore, Boopsie cannot application store acceptance or rejection.
and does not guarantee that third parties
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SCHEDULE C
MOBILE OPERATING SYSTEMS
• Android- 1.6 or greater
• BlackBerry 4.0 or greater
• .Java CLDC1.1 MI DP 2.9
• 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)
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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
• I LS Integration for holds, renewals
• Ask A Librarian
• Reading Lists
• Events, Calendar
• Blogs and Twitter
• Additional customer-generated content through `Boopsie Docs' admin module
• BookLook
• Publisher Reviews—integration with library supplied book review providers
• Overdrive Access
• Spanish language support
• Usage statistics
For BookLook, the Customer's I LS 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
14
SCHEDULE E
TRADEMARKS
BOORSIE:
1. Boops i e
2. Mobile Find
3. Smart Prefix
CUSTOMER:
1. All Customer trademarks
15
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 linked 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 derivative works, publicly
display, disclose, distribute, license and sublicense through muftiple 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
SUCH 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
PRODUCT_ 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 California St, Mountain
View, CA 94041.
4. Ownership
The Software Product is protected by copyright 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 BOOPSI EI NC'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.
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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 LAIN, 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 LAVA 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, S"rRICT 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 writing 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 govern in the event of any conflicting provisions. This Agreement shall be
governed by the laws of the State of California.
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SCHEDULE O
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
one-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
unless the City requests and approves in writing the additional costs for such services. "rhe
City shall not be liable for any additional expenses of Boopsie not specified by this Agreement
unless 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
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any existing or potential conflicts of interest related to Boopsie'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 during 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 Covera a and Limits
(a) Worker's Compensation- Statutory limits
Employers liability
$1009004 Each accidentloccurrence
$100,000 Disease- per each employee
$5001000 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 $1 00,040 per
disease per employee
(b) Technology lability (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) Unauthorized disclosure of information
20
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 Reouirements
(a) Certificates of insurance shall document the City of Fort Worth, its'
officers, Employees and Volunteers, as Oadditional 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 fumish 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 notifies Boopsie of any violation of
such laws, ordinances, rules or regulations, Boopsie shall immediately desist from and correct
the violation.
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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 Boopsie, Inc.
Attn: Susan Alanis, Assistant City Manager Attn: Greg Carpenter, CEO
1000 Throckmorton Street, Td Floor 464 Linden Street
Fort Worth TX 76102-6311 Laguna Beach, CA 92651
Facsimile: (817) 392-8654 Facsimile: (949) 715-2442
11. SOLICITATION OF EMPLOYEES
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 LAIN 1 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 Northern District of Texas, Fort Worth Division.
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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, shalt 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
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that they will not be accessing the City's computer network. However, if Boopsie, andlor 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 (1-9), 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. EUBLIC 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 As 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.
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