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HomeMy WebLinkAboutContract 59902This License Agreement, between The Rob West Marketing Company, Inc., a Texas corporation (hereby City of Fort Worth Golf , shall be effective beginning on the date that this Agreement is e . WHEREAS, RWM's business is to utilize and distribute the "Joomla" open-source Content Management Software for the creation of websites for its clients. RWM will design, transfer Licensee's new and existing content, provide necessary training to manage website, and provide integrations for Licensee's data collection tools and social media channels. RWM will host Licensee's website utilizing "Liquid Web" dedicated, cloud- based hosting platform , Backup, and SSL services. Licensee will own the website outright, along with all website files, software, email accounts, database, website domain registrar account, and website domain. NOW, THEREFORE, in consideration of the promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1.Grant of License. RWM grants Licensee a non-exclusive license of the Technology described above. The Technology will be owned and managed by Licensee, and RWM will provide support services as requested by Licensee in this agreement. 2.Copyright. The Technology is protected by United States copyright laws and international treaty provisions, and governed by GNU (General Public License) guidelines. 3.Use Restrictions. Licensee may use the Technology for communication with their own customers, contacts, and vendors within their business. Licensee may not allow any competitor of RWM to access the Administrative Areas of the Technology, or the private Member Section areas of RWM and its family of websites. 4.Term & Termination. This Initial License Term and Agreement will begin on the Effective Date printed above, and run for 12 months. This Term and Agreement shall be automatically renewed for successive 1- year terms, unless Licensee or RWM gives the other party notice of a non-renewal at least 30 days prior to the expiration of the initial license term or any renewal term. RWM or Licensee may terminate this License Agreement at any time should the other fail to comply with the terms of this Agreement. 5.Services, Fees & Payment. During Initial License Term and all renewal terms, the Agreement shall be as follows: a) RWM existing website content at a flat rate of $1,000. b) RWM shall provide ongoing "Support services to Licensee to include Email & Phone Consultation, Training Licensee to manage website content, Video Tutorial Library, Dedicated Hosting & Support, Firewall, SSL, and Website software updates, at the rate of $1,800/yr for a minimum of 1 year. c) Recurring Payment Method & Term: Annually by Check. d) Domain Registrar & Email Account services will be the financial responsibility of Licensee. If Licensee desires, RWM will provide Domain Name Registration & Email Account Hosting through a GoDaddy reseller account, granting Licensee full ownership and preferred discount pricing. RWM will provide domain transfer services, email account setup, and domain/email support at no additional fee during the time this agreement is in effect. e) Licensee is required to return this signed contract, and initial payment of $1,400 to commence project. f) Licensee must keep all Billing & Contact Information current with RWM. This includes a valid Email Address for PDF Invoice and Statement delivery via email. All invoices must be paid by Licensee within 30 days of Invoice Date unless otherwise agreed upon terms. g) Technical Support and Hosting Service for each successive term under this Agreement shall be determined by RWM. Fee must be communicated to Licensee by RWM on or before 1 month prior to the expiration of the current term. RWM fees for the Technology and/or Support thereof rise. A support contract is not required after initial term. 6.Limited Warranty. RWM warrants that the Technology will perform substantially in accordance with General Internet Reliability Standards. The Technology should be in effect and for use by the Licensee for at least 99.9% of the time. Should the Licensee feel the Technology is not performing to the standards set forth herein, Licensee may discontinue the use of, and payments for the Technology and/or Hosting Plan at any time. 7.Licensee Remedies Warranty, or (ii) refund the Fee portion that has been paid up front to RWM, that has not been used or services provided for. This Limited Warranty is void if failure of the Technology resulted from accident, abuse or misapplication by Licensee. 8.Website Content 9.Spam Content. Licensee is at any time NOT allowed to communicate or transmit Spam Emails through the website. Any such violation is subject for immediate termination of this contract by RWM. Licensee must follow guidelines of U.S. CAN SPAM Act of 2003. 10.Branding. Licensee will allow RWM to place the following text and hyperlink on their website, at the very bottom of the website in the Copyright section: "Website by: The RWM Company". 11.NO OTHER WARRANTIES. To the maximum extent permitted by applicable law, RWM disclaims all other warranties, either express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, with respect to the Technology. This limited warranty gives Licensee specific rights. Licensee may have other rights which vary from state to state. 12.NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To the maximum extent permitted by applicable law, in no event shall RWM be held liable for any damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use of, or inability to use the Technology, even if RWM has been advised of the possibility of such damages. 13.Normal Support Services. If Licensee elects to utilize RWM's support services during and beyond the Initial Term, provided Annual fees are paid and kept current, RWM shall provide Licensee telephone and email access to RWM staff personnel for questions, consultation, education, and training purposes on normal business days (Mon-Fri) from 8am-6pm Central Time. In addition, RWM will keep Licensee's technology and hosting current, provide security updates, solve problems and issues with the website, and provide 'Member' access to the RWM website so Licensee can access video tutorials and procedures 24/7/365. 14.Emergency Support Services. If Licensee elects to utilize RWM support services and Monthly fees are paid and kept current, RWM shall provide Licensee telephone, texting, and email access to RWM staff in the event of an emergency (Website not Online or Functioning properly) from 7am-9pm Central Time, 24/7/365. 15.Additional Services. RWM may offer and/or be asked to provide additional services to Licensee per Licensee's request. Services will be billed at $100/hr and can consist of requests such as additional content transfer, re-developing the website and template, and anything that pertains to work not considered a "normal support" request. 16.Privacy Policy and shall be exclusively owned and maintained by Licensee. 17.Ownership. It is expressly understood that all Information and all content and any other names, or marketing is owned exclusively by Licensee and such use in the services and Technology described herein 18.Entire Agreement. This License Agreement shall constitute the entire understanding of the parties with respect to the subject matter hereof and supersedes any and all prior understandings and agreements, written or oral, relating thereto. 19.Notices. All notices referred to herein shall be sufficient if delivered by: (i) personal delivery; (ii) email with confirmation; or (iii) certified mail, return receipt requested to the respective parties at the addresses set forth above their signatures to this Agreement, or such other addresses as they shall from time to time furnish to each other by written notice. 20.Governing Law. This License Agreement shall be governed by and construed in accordance with the substantive laws in Bexar County, Texas. 21. . In any action for breach of this License Agreement, the prevailing party shall be -of-pocket expenses. IN WITNESS WHEREOF, each of the parties has caused this License Agreement to be executed as of the date first written above. The Rob West Marketing Company 3726 Arroyo Park San Antonio, TX 78253 By: Robert C. West Its: President And City of Fort Worth Golf 4200 South Freeway, Suite 2200 Fort Worth, TX 76115 For their website: www.fortworthgolf.org By: Haley Hodsdon Its: Communications Specialist RWM License Agreement and Addendum Page 1 of 5 ADDENDUM TO RWM LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND ROB WEST MARKETING COMPANY, INC. This Addendum to RWM License Agreement is entered into by and between Rob West Marketing Company, Inc. RWM Licensee collectively the (P ), for website services for the Park & Recreation Department, Golf Division. The Contract documents shall include the following: 1. The RWM License Agreement; and 2. This Addendum. Notwithstanding any language to the contrary in the attached RWM License Agreement by a representative of each party duly authorized to bind the parties hereto, that the parties hereby agree that the provisions in this Addendum below shall be applicable to the Agreement as follows: 1.Term. The initial term of this Agreement is for one-year, beginning on the date that tant City Manager (the Effective , unless terminated earlier in accordance with the provisions of the Agreement. Licensee will have the option, in its sole discretion, to renew this Agreement under the same terms and conditions, for successive one-year terms, unless Licensee or RWM gives the other party notice of a non-renewal at least 30 days prior to the expiration of the initial license term or any renewal term. 2.Termination. a.Convenience. Either Licensee or RWM may terminate the Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. b.Breach. If either party commits a material breach of the Agreement, the non- breaching Party must give written notice to the breaching party that describes the breach in reasonable detail. The breaching party must cure the breach ten (10) calendar days after receipt of notice from the non-breaching party, or other time frame as agreed to by the parties. If the breaching party fails to cure the breach within the stated period of time, the non-breaching party may, in its sole discretion, and without prejudice to any other right under the Agreement, law, or equity, immediately terminate this Agreement by giving written notice to the breaching party. c.Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by Licensee in any fiscal period for any payments due hereunder, Licensee will notify RWM of such occurrence and the Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the RWM License Agreement and Addendum Page 2 of 5 Licensee of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. d.Duties and Obligations of the Parties. In the event that the Agreement is terminated prior to the Expiration Date, Licensee shall pay RWM for services actually rendered up to the effective date of termination and RWM shall continue to provide Licensee with services requested by Licensee and in accordance with the Agreement up to the effective date of termination. Upon termination of the Agreement for any reason, RWM shall provide Licensee with copies of all completed or partially completed documents prepared under the Agreement. In the event RWM has received access to Licensee information or data as a requirement to perform services hereunder, RWM shall return all Licensee provided data to Licensee in a machine readable format or other format deemed acceptable to Licensee. 3. nalties, and Liquidated Damages. To the extent the attached Agreement requires Licensee penalties or liquidated damages in any amount, Licensee objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 4.Law and Venue. The Agreement and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with the laws of the United States and state of Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement shall be in a court of competent jurisdiction in Tarrant County, Texas. To the extent the Agreement is required to be governed by any state law other than Texas or venue in Tarrant County, Licensee objects to such terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 5. Sovereign Immunity. Nothing herein constitutes a waiver of Licensee eign immunity. To the extent the Agreement requires Licensee to waive its rights or immunities as a government entity; such provisions are hereby deleted and shall have no force or effect. 6.Indemnity. To the extent the Agreement requires Licensee to indemnify or hold RWM or any third party harmless from damages of any kind or character, Licensee agrees only to indemnify RWM to the extent allowed by law. 7.No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed that all obligations of Licensee hereunder are subject to the availability of funds. If such funds are not appropriated or become unavailable, Licensee shall have the right to terminate the Agreement except for those portions of funds which have been appropriated prior to termination. 8.Confidential Information. Licensee is a government entity under the laws of the State of Texas and all documents held or maintained by Licensee are subject to disclosure under the Texas Public Information Act. To the extent the Agreement requires that Licensee maintain records in violation of the Act, Licensee hereby objects to such provisions and such provisions are hereby deleted from the Agreement and shall have no force or effect. In the event there is a request RWM License Agreement and Addendum Page 3 of 5 for information marked Confidential or Proprietary, Licensee shall promptly notify RWM. It will be the responsibility of RWM to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by Licensee, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 9.Addendum Controlling. If any provisions of the attached Agreement, conflict with the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or ordinance of Licensee, the terms in this Addendum shall control. 10.Immigration Nationality Act. RWM shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by Licensee, RWM shall provide Licensee with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. RWM shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any RWM employee who is not legally eligible to perform such services. RWM SHALL INDEMNIFY LICENSEE AND HOLD LICENSEE HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY RWM, RWM EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. Licensee, upon written notice to RWM, shall have the right to immediately terminate this Agreement for violations of this provision by RWM. 11.No Boycott of Israel. If RWM has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. RWM acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the Licensee is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. T By signing this Agreement, RWM certifies that RWM Licensee that RWM: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. 12.Right to Audit. With the exception of goods and services that are donated by RWM, or for which Licensee has not paid any funds, RWM agrees that Licensee shall, until the expiration of three (3) years after final payment under the Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of RWM involving transactions relating to the Agreement. RWM agrees that Licensee shall have access during normal working hours to all necessary RWM facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. Licensee shall give RWM reasonable advance notice of intended audits. 13.Electronic Signatures. This Agreement may be executed by electronic signature, which will be considered as an original signature for all purposes and have the same force and effect as an original signature. scanned and transmitted versions (e.g. via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted via software such as Adobe Sign. RWM License Agreement and Addendum Page 4 of 5 14.The Licensee is a governmental entity under the laws of the state of Texas and -Insurance by -insured and therefore is not required to purchase insurance. To the extent the Agreement requires Licensee to purchase insurance, Licensee objects to any such provision, the parties agree that any such requirement shall be null and void and is hereby deleted from the Agreement and shall have no force or effect. Licensee will provide a letter of self-insured status if requested by Vendor. (signature page follows) RWM License Agreement and Addendum Page 5 of 5 Licensee: By: ___________________________ Name: Jesica McEachern Title: Assistant City Manager Date: ___________________________ RWM: By: ___________________________ Name: Robert C. West Title: President Date: ___________________________ FOR CITY OF FORT WORTH INTERNAL PROCESSES: Approval Recommended: By: ______________________________ Name: Dave Lewis Title: Acting Director Park & Recreation Department Approved as to Form and Legality: By: ______________________________ Name: Nico Arias Title: Assistant City Attorney Contract Authorization: M&C: N/A Form 1295: N/A Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. By: ______________________________ Name: Matthew Quinn Title: Management Analyst II Park & Recreation Department City Secretary: By: ______________________________ Name: Jannette S. Goodall Title: City Secretary