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HomeMy WebLinkAboutContract 61950Vendor Services Agreement Page 1 of 20 This VENDOR SERVICES AGREEMENT between the CITY OF FORT WORTH a Texas home-rule municipal corporation acting by and through its duly authorized Assistant City Manager, and FTR, LTD Vendor , acting by and through its duly authorized representative, each individually referred to as a and collectively referred to as the 1. Scope of Services. Premium Support for Court Recording , which are set forth in more detail in Scope of Services, attached hereto and incorporated herein for all purposes. In the event of a conflict between the terms of the body of this Agreement and the terms of Exhibit A, the terms of this Agreement shall control. 2.Term. The term of this Agreement is for one (1) year, beginning on the date that this in accordance with this Agreement. City will have the option, in its sole discretion, to renew this Agreement under the same terms and conditions, for up to four (4) one-year renewal option 3.Compensation. 3.1 Total compensation under this Agreement will not exceed eight thousand eight hundred twenty-six dollars and zero cents ($8,826.00). 3.2 City will pay Vendor in accordance with the Prompt Payment Act (Chapter 2251 of the Texas Government Code) and the provisions of this Agreement, including Payment Schedule, which is attached hereto and incorporated herein for all purposes. In the event of a conflict between the terms of the body of this Agreement and the terms of Exhibit B, the terms of this Agreement shall control. 3.3 Vendor will not perform any additional services or bill for expenses incurred for City not specified by this Agreement unless City requests and approves in writing the additional costs for such services. City will not be liable for any additional expenses of Vendor not specified by this Agreement unless City first approves such expenses in writing. 4. Termination. 4.1. Written Notice. City or Vendor may terminate this Agreement at any time and for written notice of termination. 4.2 Non-Appropriation of Funds. In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Vendor Vendor Services Agreement Page 2 of 20 of such occurrence and this Agreement will terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, City will pay Vendor for services actually rendered up to the effective date of termination and Vendor will continue to provide City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Vendor will provide City with copies of all completed or partially completed documents prepared under this Agreement. In the event Vendor has received access to City Information or data as a requirement to perform services hereunder, Vendor will return all City-provided data to City in a machine-readable format or other format deemed acceptable to City. 5. Disclosure of Conflicts and Confidential Information. 5.1 Disclosure of Conflicts. Vendor hereby warrants to City that Vendor has made full disclosure in writing of any existing or potential conflicts of interest related to Vendor's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Vendor hereby agrees immediately to make full disclosure to City in writing. 5.2 Confidential Information. Vendor, for itself and its officers, agents and employees, agrees that it will treat all information provided to it by City as confidential and will not disclose any such information to a third party without the prior written approval of City. 5.3 Public Information Act. City is a government entity under the laws of the State of Texas and all records held or maintained for City are subject to disclosure under the Texas Public Information Act. In the event there is a request for information marked Confidential or Proprietary, City will promptly notify Vendor. It will be the responsibility of Vendor to submit reasons objecting to disclosure to the Texas Attorney General. A determination on whether such reasons are sufficient will not be decided by City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 5.4 Unauthorized Access. Vendor must store and maintain City Information in a secure manner and will not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Vendor must notify City immediately if the security or integrity of any City Information has been compromised or is believed to have been compromised, in which event, Vendor will, in good faith, use all commercially reasonable efforts to cooperate with City in identifying what information has been accessed by unauthorized means and will fully cooperate with City to protect such City Information from further unauthorized disclosure. 6.Right to Audit. Vendor agrees that City will, until the expiration of three (3) years after final payment under this Agreement, 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, including, but not limited to, all electronic records of Vendor involving transactions relating to this Agreement at no additional cost to City. Vendor agrees that City will have access during normal working hours to all necessary Vendor facilities and will be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City will give Vendor reasonable advance notice of intended audits. Vendor Services Agreement Page 3 of 20 7.Independent Contractor. It is expressly understood and agreed that Vendor will operate as an independent contractor as to all rights and privileges and work performed under this Agreement, and not as agent, representative or employee of City. Subject to and in accordance with the conditions and provisions of this Agreement, Vendor will have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, vendors, and subcontractors. Vendor acknowledges that the doctrine of respondeat superior will not apply as between City, its officers, agents, servants and employees, and Vendor, its officers, agents, employees, servants, contractors, and subcontractors. Vendor further agrees that nothing herein will be construed as the creation of a partnership or joint enterprise between City and Vendor. It is further understood that City will in no way be considered a co-employer or a joint employer of Vendor or any officers, agents, servants, employees, contractors, or subcontractors. Neither Vendor, nor any officers, agents, servants, employees, contractors, or subcontractors of Vendor will be entitled to any employment benefits from City. Vendor will be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees, or contractors. 8.Liability and Indemnification. 8.1 LIABILITY - VENDOR WILL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND PERSONAL INJURY, INCLUDING, INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF VENDOR, ITS OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS. 8.2 GENERAL INDEMNIFICATION - VENDOR HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, REPRESENTATIVES, SERVANTS, AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO VENDOR'S BUSINESS AND ANY RESULTING LOST PROFITS) AND PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF VENDOR, ITS OFFICERS, AGENTS, REPRSENTATIVES, SERVANTS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS. 8.3 INTELLECTUAL PROPERTY INDEMNIFICATION VENDOR AGREES TO DEFEND, SETTLE, OR PAY, AT ITS OWN COST AND EXPENSE, ANY CLAIM OR ACTION AGAINST CITY FOR INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE MARK, TRADE SECRET, OR SIMILAR PROPERTY RIGHT ARISING FROM USE OF THE SOFTWARE OR DOCUMENTATION IN ACCORDANCE WITH THIS AGREEMENT, IT BEING UNDERSTOOD THAT THIS AGREEMENT TO DEFEND, SETTLE OR PAY WILL NOT APPLY IF CITY MODIFIES OR MISUSES THE SOFTWARE AND/OR DOCUMENTATION. SO LONG AS VENDOR BEARS THE COST AND EXPENSE OF PAYMENT FOR CLAIMS OR ACTIONS AGAINST CITY PURSUANT TO THIS SECTION, VENDOR WILL HAVE THE RIGHT TO CONDUCT THE DEFENSE OF ANY SUCH CLAIM OR ACTION AND ALL NEGOTIATIONS FOR ITS SETTLEMENT OR COMPROMISE AND TO SETTLE OR COMPROMISE ANY SUCH CLAIM; HOWEVER, CITY WILL HAVE THE RIGHT TO FULLY PARTICIPATE IN ANY AND ALL SUCH Vendor Services Agreement Page 4 of 20 INTEREST, AND CITY AGREES TO COOPERATE WITH VENDOR IN DOING SO. IN THE EVENT CITY, FOR WHATEVER REASON, ASSUMES THE RESPONSIBILITY FOR PAYMENT OF COSTS AND EXPENSES FOR ANY CLAIM OR ACTION BROUGHT AGAINST CITY FOR INFRINGEMENT ARISING UNDER THIS AGREEMENT, CITY WILL HAVE THE SOLE RIGHT TO CONDUCT THE DEFENSE OF ANY SUCH CLAIM OR ACTION AND ALL NEGOTIATIONS FOR ITS SETTLEMENT OR COMPROMISE AND TO SETTLE OR COMPROMISE ANY SUCH CLAIM; HOWEVER, VENDOR WILL FULLY PARTICIPATE AND COOPERATE WITH CITY IN DEFENSE OF SUCH CLAIM OR ACTION. CITY AGREES TO GIVE VENDOR TIMELY WRITTEN NOTICE OF ANY SUCH CLAIM OR ACTION, WITH COPIES OF ALL PAPERS CITY MAY RECEIVE RELATING PAYMENT OF COSTS OR EXPENSES WILL NOT ELIMINATE VENDOR INDEMNIFY CITY UNDER THIS AGREEMENT. IF THE SOFTWARE AND/OR DOCUMENTATION OR ANY PART THEREOF IS HELD TO INFRINGE AND THE USE THEREOF IS ENJOINED OR RESTRAINED OR, IF AS A RESULT OF A SETTLEMENT OR COMPROMISE, SUCH USE IS MATERIALLY ADVERSELY RESTRICTED, VENDOR WILL, AT ITS OWN EXPENSE AND AS CITY'S SOLE REMEDY, EITHER: (A) PROCURE FOR CITY THE RIGHT TO CONTINUE TO USE THE SOFTWARE AND/OR DOCUMENTATION; OR (B) MODIFY THE SOFTWARE AND/OR DOCUMENTATION TO MAKE IT NON-INFRINGING, PROVIDED THAT SUCH MODIFICATION DOES NOT MATERIALLY ADVERSELY AFFECT CITY'S AUTHORIZED USE OF THE SOFTWARE AND/OR DOCUMENTATION; OR (C) REPLACE THE SOFTWARE AND DOCUMENTATION WITH EQUALLY SUITABLE, COMPATIBLE, AND FUNCTIONALLY EQUIVALENT NON-INFRINGING SOFTWARE AND DOCUMENTATION AT NO ADDITIONAL CHARGE TO CITY; OR (D) IF NONE OF THE FOREGOING ALTERNATIVES IS REASONABLY AVAILABLE TO VENDOR TERMINATE THIS AGREEMENT, AND REFUND ALL AMOUNTS PAID TO VENDOR BY CITY, SUBSEQUENT TO WHICH TERMINATION CITY MAY SEEK ANY AND ALL REMEDIES AVAILABLE TO CITY UNDER LAW. 9.Assignment and Subcontracting. 9.1 Assignment. Vendor will not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of City. If City grants consent to an assignment, the assignee will execute a written agreement with City and Vendor under which the assignee agrees to be bound by the duties and obligations of Vendor under this Agreement. Vendor and Assignee will be jointly liable for all obligations of Vendor under this Agreement prior to the effective date of the assignment. 9.2 Subcontract. If City grants consent to a subcontract, the subcontractor will execute a written agreement with Vendor referencing this Agreement under which subcontractor agrees to be bound by the duties and obligations of Vendor under this Agreement as such duties and obligations may apply. Vendor must provide City with a fully executed copy of any such subcontract. 10.Insurance. Vendor must provide City with certificate(s) of insurance documenting policies of the following types and minimum coverage limits that are to be in effect prior to commencement of any Services pursuant to this Agreement: 10.1 Coverage and Limits Vendor Services Agreement Page 5 of 20 (a)Commercial General Liability: $1,000,000 - Each Occurrence $2,000,000 - Aggregate (b) Automobile Liability: $1,000,000 - Each occurrence on a combined single limit basis Coverage will be on any vehicle used by Vendor, or its employees, agents, or representatives in the course of providing S will be any vehicle owned, hired and non-owned. (c) : ensation laws where the Services are being performed Employers liability $100,000 - Bodily Injury by accident; each accident/occurrence $100,000 - Bodily Injury by disease; each employee $500,000 - Bodily Injury by disease; policy limit (d) Professional Liability (Errors & Omissions): $1,000,000 - Each Claim Limit $1,000,000 - Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage must be claims-made, and maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance must be submitted to City to evidence coverage. 10.2 General Requirements (a) The commercial general liability and automobile liability policies must name City as an additional insured thereon, as its interests may appear. The term City includes its employees, officers, officials, agents, and volunteers in respect to the contracted services. (b) must include a Waiver of Subrogation (Right of Recovery) in favor of City. (c) limits of coverage must be provided to City. Ten (10) da will be acceptable in the event of non-payment of premium. Notice must be sent to the Risk Manager, City of Fort Worth, 100 Fort Worth Trail, Fort Worth, Texas 76102, with copies to the Fort Worth City Attorney at the same address. Vendor Services Agreement Page 6 of 20 (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 City to request required insurance documentation will not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that Vendor has obtained all required insurance will be delivered to the City prior to Vendor proceeding with any work pursuant to this Agreement. 11.Compliance with Laws, Ordinances, Rules and Regulations. Vendor 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 City notifies Vendor of any violation of such laws, ordinances, rules or regulations, Vendor must immediately desist from and correct the violation. 12.Non-Discrimination Covenant. Vendor, for itself, its personal representatives, assigns, contractors, subcontractors, and successors in interest, as part of the consideration herein, agrees that in the performance of Vendor will 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 VENDOR, ITS PERSONAL REPRESENTATIVES, ASSIGNS, CONTRACTORS, SUBCONTRACTORS, OR SUCCESSORS IN INTEREST, VENDOR AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND HOLD CITY HARMLESS FROM SUCH CLAIM. 13.Notices. Notices required pursuant to the provisions of this Agreement will 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: To CITY: City of Fort Worth Attn: Assistant City Manager 100 Fort Worth Trail Fort Worth, TX 76102 With copy to Fort Worth same address To VENDOR: FTR, LTD Anthony Agnello, Vice President-Justice Solutions Sales 1401 17th Street, Suite 525 Denver, CO 80202 14.Solicitation of Employees. Neither City nor Vendor will, 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 Vendor Services Agreement Page 7 of 20 during the term of this Agreement, without the prior written consent of the person's employer. Notwithstanding the foregoing, this provision will not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 15. Governmental Powers. It is understood and agreed that by execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. 16. No Waiver. The failure of City or Vendor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein does not constitute a waiver of City's or Vendor occasion. 17. Governing Law / Venue. This Agreement will 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 will lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired. 19. Force Majeure. City and Vendor will exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but will not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance, or regulation; acts of God; acts of the public enemy; fires; strikes; lockouts; natural disasters; wars; riots; epidemics or pandemics; government action or inaction; orders of government; material or labor restrictions by any governmental authority; transportation problems; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any States; civil disturbances; other national or regional emergencies; or any other similar cause not enumerated herein but which is beyond the reasonable control of the Party whose suspended during the period of, and only to the extent of, such prevention or hindrance, provided the affected Party provides notice of the Force Majeure Event, and an explanation as to how it prevents or rrence of the Force Majeure Event, with the reasonableness of such notice to be determined by the City in its sole discretion. The notice required by this section must be addressed and delivered in accordance the notice section of this Agreement. 20. Headings Not Controlling. Headings and titles used in this Agreement are for reference purposes only, will not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. 21. 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 will not be employed in the interpretation of this Agreement, Exhibit A, and Exhibit B. 22. Amendments / Modifications / Extensions. No amendment, modification, or extension of this Agreement will be binding upon a party hereto unless set forth in a written instrument, which is executed by an authorized representative of each party. Vendor Services Agreement Page 8 of 20 23.Entirety of Agreement . This Agreement, including Exhibits A and B, contains the entire understanding and agreement between City and Vendor, 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. 24.Counterparts. This Agreement may be executed in one or more counterparts and each counterpart will, for all purposes, be deemed an original, but all such counterparts will together constitute one and the same instrument. 25.Warranty of Services. Vendor warrants that its services will be of a high quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30) days from the date that the services are completed. In such event, at Vendor option, Vendor will either (a) use commercially reasonable efforts to re-perform the services in a manner that conforms with the warranty, or (b) refund the fees paid by City to Vendor for the nonconforming services. 26.Immigration and Nationality Act. Vendor must 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 City, Vendor will provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Vendor must adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Vendor employee who is not legally eligible to perform such services. VENDOR WILL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR CONTRACTORS, SUBCONTRACTORS, OR AGENTS. City, upon written notice to Vendor, will have the right to immediately terminate this Agreement for violations of this provision by Vendor. 27.Ownership of Work Product. City will be the sole and exclusive owner of all reports, work papers, procedures, guides, and documentation that are created, published, displayed, or produced in conjunction with the services provided under this Agreement (). Further, City will be the sole and exclusive owner of all copyright, patent, trademark, trade secret and other proprietary rights in and to the Work Product. Ownership of the Work Product will inure to the benefit of City from the date of conception, creation or fixation of the Work Product in a tangible medium of expression (whichever occurs first). Each copyrightable aspect of the Work Product will be considered a "work-made- for-hire" within the meaning of the Copyright Act of 1976, as amended. If and to the extent such Work Product, or any part thereof, is not considered a "work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended, Vendor hereby expressly assigns to City all exclusive right, title and interest in and to the Work Product, and all copies thereof, and in and to the copyright, patent, trademark, trade secret, and all other proprietary rights therein, that City may have or obtain, without further consideration, free from any claim, lien for balance due, or rights of retention thereto on the part of City. 28.Signature Authority. The person signing this Agreement hereby warrants that they have 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. This Agreement and any amendment hereto, may be executed by any authorized representative of Vendor. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 29.Change in Company Name or Ownership. Vendor must Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining Vendor Services Agreement Page 9 of 20 updated City records. The president of Vendor or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W- resolution approving the action, or an executed merger or acquisition agreement. Failure to provide the specified documentation may adversely impact invoice payments. 30. No Boycott of Israel. If Vendor has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does s the meanings ascribed to those terms in Chapter 2271 of the Texas Government Code. By signing this Agreement, Vendor certifies that Vendor the City that Vendor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. 31. Prohibition on Boycotting Energy Companies. If Vendor has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with Chapter 2276 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the Vendor that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. To the extent that Chapter 2276 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor certifies that erification to the City that Vendor: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 32. Prohibition on Discrimination Against Firearm and Ammunition Industries . If Vendor has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the Vendor that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, the City that Vendor: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. 33. 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 (e.g. via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted via software such as Adobe Sign. (signature page follows) Vendor Services Agreement Page 10 of 20 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples. CITY OF FORT WORTH: By: ___________________________ Name: Valerie R. Washington Title: Assistant City Manager Date: ___________________________ VENDOR: FTR, LTD By: ___________________________ Name: Anthony Agnello Title: Vice President-Justice Solutions Sales Date: ___________________________ FOR CITY OF FORT WORTH INTERNAL PROCESSES: Approval Recommended: By: ______________________________ Name: William F. Rumuly Title: Director Attest: By: ______________________________ Name: Jannette Goodall Title: City Secretary Contract Authorization: M&C: N/A Date M&C Approved: 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: Shelley Hollars Title: Administrative Services Manager Approved as to Form and Legality: By: ______________________________ Name: Andrea Phillips Title: Assistant City Attorney Vendor Services Agreement Page 11 of 20 EXHIBIT A PREMIUM SUPPORT DEFINITIONS. The following capitalized terms will have the definitions set forth below: means For the Record, LTD. means entity using FTR software and support. means 4 a.m. to 5 p.m. Pacific Time Monday through Friday excluding federal holidays. means the total amount of time during any calendar month, measured in minutes, during which Client is not able to access the SaaS Service due to planned system maintenance performed by FTR. FTR will exercise reasonable efforts to perform scheduled system maintenance between the hours of 10 p.m. and 2 a.m. Pacific Time. FTR will provide Client with reasonable prior notice of such Scheduled Downtime. means a revision to the Software to provide bug fixes, corrections and minor enhancements. Updates are designated by progressing the version number to the right of decimal (e.g. v 1.1 to v 1.2). means any new version of the Software incorporating major new features and enhancements. Upgrades are designated by progressing the version number to the left of the decimal (e.g. v 1.0 to v 2.0). HELP DESK SUPPORT Help Desk. FTR will provide telephone or email support for the FTR Offerings covered under identifying and - functionality questions, installations, Software Updates and Software Upgrades). All Help Desk calls shall, if necessary, be prioritized according to the severity of a call, as determined by FTR in its discretion. FTR Help Desk hours, time zones, and policies are subject to change at the option of FTR. Help Desk Support does not include Professional Services which shall expressly be undertaken through Statement of Work. Contacts. Client shall appoint up to three (3) people as its authorized customer support contacts. Upon acknowledgement by FTR, authorized technical support contacts may contact FTR for support. Authorized technical support contacts must complete training on the operation and maintenance of the FTR Offerings as specified by FTR. Assistance. Client shall promptly advise FTR of any failure with the FTR Offerings to comply with its Documentation in all material respects and shall provide reasonable assistance and cooperation to allow FTR to define and resolve such non-compliance. This includes providing (i) a detailed problem description; (ii) reasonable efforts to reproduce the problem; and (iii) reasonable access to authorized customer support contacts. Remote Diagnostics. Client agrees to allow FTR reasonable remote access to the Software in order to provide the necessary support pursuant to this Premium Support addendum. Remote Diagnostics Vendor Services Agreement Page 12 of 20 may include, with Client acceptance, with Premium Support. Any Professional Services required to activate EMS shall be expressly undertaken through Statement of Work. Response and Resolution Times. During Normal Business Hours, FTR will provide an initial response to any support request within eight (8) business hours. Thereafter, FTR will use commercially reasonable efforts to provide a work around and/or permanent fix within two (2) business days. Progress be tracked through its customer portal. Should FTR, in its sole judgment, determine that there is a reproducible error in the Software, it will, at its sole option, provide Client with a fix/workaround, or instruct Client to install a newer version of the Software with that error corrected. Exceptions to Support. FTR will have no obligation under with respect to any errors, defects, delays, downtime or other support issues to the extent caused by: (i) non-compliance by Client with any provision of this Pre SaaS Service or Software after FTR has advised Client to modify its use of the SaaS Service or Software, eq CLIENT REQUIREMENTS. Client Networks and Support Environment. Client is responsible for maintenance and management of its computer network(s), servers, and software, and any equipment or services related to maintenance and management of the foregoing. Client is responsible for correctly configuring its systems in accordance with any instructions provided by FTR, as may be necessary for provision of access to the features and functions of the SaaS Service and Software. Information related to supported environments may be found in the Documentation at www.fortherecord.com. Client Assistance. Client will reasonably cooperate with FTR with any support request, and provide FTR with such information as reasonably requested by FTR, including, without limitation: (a) a systems and networks, (c) information necessary for FTR to reproduce the issue, and (d) any log files, trace and system files FTR requests, to assist with troubleshooting the issue. Client acknowledges that any failure to provide this information may prevent or delay FTR in providing support contemplated hereunder, and that FTR will not be responsible for any such delays. Maintenance. FTR will provide Updates to the Software that are commercially released during the Term. All Updates are released in the sole discretion of FTR, and FTR has no obligation to create any Updates. Premium Support does not include the provision of Upgrades. Vendor Services Agreement Page 13 of 20 ORDER FORM Client Information Address Information Key Terms EXHIBIT B This For The Record Master Software Service Agreement Order Form (the Initial Order Form is by and between FTR Limited For The Record or FTR and the entity listed as Client below This Initial Order Form is governed by the Master Service Terms and Conditions attached hereto (the All capitalized terms not defined herein have the meaning given to them in the Service Terms. The parties cause this Initial Order Form to be executed by their authorized representatives as of the Effective Date set forth below In the event of any conflict between this Initial Order Form and the Service Terms, the terms set forth in this Initial Order Form will prevail, but solely with respect to this Initial Order Form. Client: Texas Fort Worth Municipal Court Reference Number: QUO-13371-V2Y8T Expiration Date: 8/31/2024 Proposed By: Jacob Kimminau Bill To: Deliver To: Texas Fort Worth Municipal Court Texas Fort Worth Municipal Court 1000 Throckmorton St. 1000 Throckmorton St. Fort Worth, Texas 76102 Fort Worth, Texas 76102 US US Order Start Date*: 8/1/2024 Payment Method: ACH Order End Date*: 8/1/2025 Billing Method: Email Biling Frenquency: Annualy unlsess otherwise stated Note: Order Start Date only applies to orders involving subscription or support contracts. Additional Comments: Contract Number: 47QTCA24D001Q Vendor Services Agreement Page 14 of 20 ORDER FORM Order Details Product Name Product Code Unit Type Unit Price Qty Total Price FTR Premium Support PWS60699GS10ZN PCS $672.85 7 $4,709.95 Subtotal: $4,709.95 Estimated Freight Quote Total: $4,709.95 Order Start Date above, ForTheRecord may adjust these terms, without increasing the Total Price, based on the date ForTheRecord activates the products above. Following activation, any adjustments to these terms may be confirmed by reference to the order confirmation email sent by ForTheRecord to the Billing Email Address above, and/or by contacting accounts@fortherecord.com. + The Monthly/Unit Price shown above has been rounded to two decimal places for display purposes. As many as eight decimal places may be present in the actual price. The totals for this order were calculated using the actual price, rather than the Monthly/Unit Price displayed above, and are the true and binding totals for this order. Prices shown above do not include any taxes that apply. Any such taxes that are the responsibility of ForTheRecord will be calculated upon invoicing. This is not an invoice. FTR may, upon no less than sixty (60) days prior to the anniversary of the Effective Date, increase its pricing set forth herein by the lesser of: (i) five percent (5%), or (ii) the annual percentage increased in the Consumer Price Index, the U.S. City Average for All Urban Consumers and All Items for the published previous twelve (12) months. Vendor Services Agreement Page 15 of 20 MASTER SERVICE TERMS AND CONDITIONS 1. DEFINITIONS. As used in this Agreement: 1.1 means all information technical, marketing, financial, contracts, licenses, operations, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. With respect to FTR, reasonably subject to protection under applicable law, Confidential Information includes the source code, structure and logic of the FTR Offerings and any information derived from or concerning the FTR Offerings, the Documentation and the terms of this Agreement. With respect to the Client, Confidential Information means any information that the Client is required by law to keep Confidential Client Data 1.2 Client Data means any documents, data, or information contained in any document, recording, template or other similar file submitted by Client through the FTR Offerings or provided by Client to FTR as part of the FTR Offerings. 1.3 Documentation handbooks, and online materials provided by FTR to Client that describe the features, functionality or operation of the FTR Offerings. 1.4 FTR Offerings Software to be provided by FTR to Client in accordance with the terms herein. 1.5 Order Form by both parties identifying the software and services to be made available by FTR, substantially in the form of the initial order attached hereto. 1.6 Performance Data and other technical performance data automatically generated by the FTR Offerings relating to the use, performance, efficacy, reliability and/or accuracy of the FTR Offerings. 1.7 Premium Support Support offering as further described on Exhibit A. 1.8 SaaS Service provided by FTR to Client in accordance with the terms herein. 1.9 Software -side software application(s) to be provided by FTR to Client in accordance with the terms herein. 1.10 Storage Services that enables the storage of digital recordings, transcripts and metadata. 2. FTR OFFERINGS 2.1 License to FTR Offerings. Subject to the terms and conditions of this Agreement, FTR hereby grants to Client a non-sublicensable, non-transferable (except as provided in Section 15.6), non-exclusive right and license to: (i) during the applicable term of the Order Form, access and use the SaaS Services, and (ii) install, execute and use the Software for the term set forth in the applicable Order Form, in each case, in accordance with the applicable al business purposes (not for further resale and distribution). Client may also request one (1) copy of the Software for back-up, disaster recovery or archival purposes only. 2.2 Support. FTR will (i) provide Client with access to any bug fixes, hot patches and error corrections that FTR generally releases to other customers of the FTR Offerings, (ii) use commercially reasonable endeavors to provide the SaaS Services, and (iii) provide Premium Support as set forth on Exhibit A when Premium Support is noted on an executed Order Form. 2.3 Updates and Modifications. Client acknowledges and agrees that FTR may, from time to time, make certain updates and modifications to the FTR Offerings; provided, that, FTR shall not, during the term of any applicable Order Form, remove or substantially degrade, any material feature or function of the applicable FTR Offerings. 3. IMPLEMENTATION AND TRAINING. From time to time, the parties may enter into written work orders that reference this Agreement (Statement of Work training and other professional services to be provided by Professional Services Professional Services in a professional and workmanlike manner. Client agrees to perform any of its obligations set forth in any Statement of Work, and will reasonably cooperate with FTR in the performance of the Professional Services, including, without limitation, providing all information and personnel reasonably requested by FTR in the performance of the Professional Services. In addition, Client will provide any required consents in a timely manner. 4. RESTRICTIONS. Client will not, and will not permit any end user of the FTR Offerings to: (a) use the Vendor Services Agreement Page 16 of 20 FTR Offerings to harvest, collect, gather or assemble information or data regarding any third parties without their consent; (b) reverse engineer, disassemble or decompile any component of the FTR Offerings; (c) sublicense any of FTR Offerings for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the FTR Offering; or (e) otherwise use the FTR Service in any manner that exceeds the scope of use permitted under Section 2.1. 5. FEES AND PAYMENT. 5.1 Fees. Client will pay the fees set forth on the Fees 5.2 Payments. Other than Fees pertaining to Professional Services, all Fees are due and payable in advance. Client will pay FTR all amounts due under this Agreement within thirty (30) days after the date of the invoice therefore. Any amount that is not paid when due will accrue interest at one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. 5.3 Taxes. Client (if Client does not provide tax- exempt certificate) will be responsible for payment of all duties, and other governmental charges, and any related penalties and interest, arising from the payment of Fees to FTR under this Agreement or the provision of the FTR Technology to Client. Client will make all payments of Fees to FTR free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on responsibility, and Client will provide FTR with official receipts issued by the appropriate taxing authority, or such other evidence as the FTR may reasonably request, to establish that such taxes have been paid. 5.4 Records; Audit. During the term of this Agreement, and for at least three (3) years after its maintain at its principal place of business complete and to this Agreement, including the number of courtrooms in which the FTR Offerings were used/deployed, the FTR Offerings used in each courtroom and all other data reasonably needed for verification of amounts to be paid to FTR under this Agreement. During the Records Term, FTR will have the right, during normal business hours and upon at least ten (10) days prior notice, to have an independent audit firm selected by FTR and reasonably acceptable to order to verify that Client has paid to FTR the correct amounts owed under this Agreement and otherwise complied with the terms of this Agreement. The audit will that Client has underpaid the amounts owed to FTR by five percent (5%) or more during the audited period, in which case Client will reimburse FTR for all reasonable costs and expenses incurred by FTR in connection with such audit. Client will promptly pay to FTR any amounts shown by any such audit to be owing plus interest as provided in the subsection titled Payments. Such audits will be conducted no more than once in any period of twelve consecutive months. Any confidential or proprietary information of Client disclosed to FTR or the independent accounting firm in the course of the audit will be deemed the Confidential Information of Client, and any independent auditing firm will agree to be bound by confidentiality terms at least as protective as those set forth in the section titled Confidentiality. 6. CONFIDENTIAL INFORMATION. The receiving party agrees that it will not use or disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement. The receiving party will limit access to the Confidential Information to those who have a need to know such information to use or provide the FTR Service. The Confidential Information from unauthorized use, access, or disclosure in a reasonable manner. Upon termination of this Agreement, the receiving party will return to the disclosing party or destroy all copies of the Confidential Information. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information which (a) is or becomes a part of the public domain through no act or omission of the possession prior to the disclosure, as shown by the records, or (c) is independently developed by the receiving party. The receiving party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body. 7. DATA SECURITY. FTR will implement and maintain throughout the term of this Agreement, commercially reasonable administrative, physical and technical safeguards designed to protect any Client Data collected by the SaaS Services against accidental loss and unauthorized access, disclosure and use. Unless otherwise agreed by Client, all Client Data will be processed in the United States. In the event FTR becomes aware of any accidental loss or unauthorized access, disclosure or use of any Confidential Client Data that is personal data or personally identifiable information as defined under laws Security Incident FTR will (i) promptly notify Client of such Security Vendor Services Agreement Page 17 of 20 Incident, and (ii) provide Client with a description of the Security Incident, including, to the extent known to FTR, the nature of the information compromised, along with regular updates related thereto, and steps being taken to mitigate the potential risks associated with such Security Incident. Client is solely responsible for compliance with incident notification laws applicable to Client and fulfilling any third-party notification obligations related to any Security Incident under this Section 7 will not be construed as an acknowledgement by FTR of any fault or liability with respect to the Security Incident. 8. OWNERSHIP. 8.1 FTR System and Technology. Client acknowledges that FTR retains all right, title and interest in and to the FTR Offerings, Performance Data and all software and all FTR proprietary information and technology used by FTR or provided to Client in connection with the FTR Offerings (th FTR Technology the FTR Technology is protected by intellectual property rights owned by or licensed to FTR. Other than as expressly set forth in this Agreement, no license or other rights in the FTR Technology are granted to the Client. 8.2 Client Data. Client retains all right, title and interest in and to the Client Data. Client hereby grants to FTR a non-exclusive, royalty-free and fully paid license to use Client Data for the purpose of providing the FTR Offerings and Professional Services. In addition, Client hereby grants to FTR a non-exclusive, royalty-free, fully- paid, irrevocable and perpetual right and license to use Client Data (i) on an aggregated and de-identified basis, and (ii) collected from, or in connection with, public courtroom proceedings, in each case, for the purpose of testing, product maintenance, support, property rights owned by or licensed to FTR. Other than as expressly set forth in this Agreement, and services. Further and without limiting the foregoing, Client acknowledges and agrees that FTR may be collecting personal information from users and data subjects of the FTR Offerings in connection with its privacy policy available at: https://www.fortherecord.com/privacy/, as may be updated by FTR from time to time. FTR will not otherwise knowingly use or access any Client Data unless authorized to do so by Client. 8.3 Performance Data. FTR shall have the right to collect and analyze Performance Data, and FTR will be free (during and after the term of this Agreement) to use such Performance Data for any legal purpose; provided, that, such use does not reveal the identity of Client or any judge, attorney, witness, litigant or other courtroom personnel. 8.4 Feedback. Client hereby grants FTR a royalty- free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the FTR Service any suggestions, enhancement requests, recommendations or other feedback provided by Client, including Users, relating to the FTR Service. FTR shall not identify Client as the source of any such feedback. 9. 9.1 Compliance with Laws. Client will at all times comply with all laws and regulations applicable to its use of the FTR Offerings, including providing any notices and/or name, statement(s), recording(s), likeness, image, biographical information or other personal information in connection with the FTR Offerings. 9.2 Account and Passwords. Client will be solely responsible for (i) maintaining the confidentiality and security of all username(s), password(s) and other access credential(s) used by Client to access its FTR Offerings Account willful misconduct or negligence). In the event of any count, Client will promptly notify FTR and take any actions reasonably requested by FTR in connection with such unauthorized access. 9.3 Equipment and Facilities. Except to the extent expressly undertaken by FTR as part of its Professional Services under a Statement of Work, Client is solely responsible for providing, installing and maintaining, at its sole cost and expense, all equipment, hardware, peripherals, to and use of the FTR Offerings, including without limitation, all cameras, recorders, mixers and microphones as may be required to use the FTR Offerings in accordance with the terms herein. 9.4 Client Backups. Unless Client has an active subscription to the Storage Services, FTR has no obligation to store any Client Data and Client shall be solely responsible for creating and maintaining backups of Client Data. In the event Client has an active subscription to the Storage Services, Client will be solely responsible for specifying which items of Client Data will be backed up by the Storage Services. FTR will have no liability for any failures by Client to backup any Client Data that was not required to be backed up in connection with the Storage Services. 9.5 Recording Responsibility. Client acknowledges and agrees that Client is responsible for starting and stopping all recordings, including audio and visual recordings, to be created in connection with the FTR Offerings. FTR will have no liability for any failures or omissions of Client or its personnel, to start or stop any recordings. Vendor Services Agreement Page 18 of 20 10. TERM AND TERMINATION 10.1 Term. Unless earlier terminated pursuant to the subsection titled Termination, the term of this Agreement shall commence as of the Effective Date and shall continue for Term however, that at the end of such initial term and any extension or renewal thereof, the Term shall be renewed for an additional one (1) year period unless a party provides, at least ninety (90) days prior to the end of the initial term or any renewal thereof, written notice that it does not intend to extend the term or otherwise terminated the e-File Agreement in accordance with this Section 10. 10.2 Termination. (a) For Breach. Non- breaching Party immediately upon written notice to the other party (the Breaching Party breaches any provision of this Agreement and does not substantially cure the breach within sixty (60) days after receiving written notice thereof from the Non-breaching Party. (b) Changes in Law. If the obligations imposed upon either party under this Agreement are materially changed, or are made illegal, pursuant to a statute or court mandate (including, without limitation, local court rules and state Supreme court rules and administrative orders), then the parties shall work together in good faith to incorporate such changes into this Agreement in a commercially reasonable manner. In the event the parties cannot reach agreement with respect to such changes within fourteen (14) days, then either party may terminate this Agreement upon ten (10) days written notice to the other party. 10.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason, any amounts owed to FTR under this Agreement before such termination or expiration will be immediately due and payable, (excluding with respect to perpetual Software licenses) all licensed rights granted in this Agreement will immediately cease to exist, and Client must promptly discontinue further use of the FTR Offerings, and Client must return to FTR any copies of the Documentation that the Client is not entitled to keep pursuant to this subsection and certify to FTR in writing signed by an officer of Client that it has fully complied with the foregoing. 10.4 Access to Data. For a period of thirty (30) days after the termination/expiration of this Agreement, Client shall have the right to download, in a format supported by FTR, electronic versions of the Client Data that are available in the SaaS Services. At the end of such ninety (90) day period, FTR shall have no further obligation to host any Client Data. 10.5 Survival. Sections and subsections titled Definitions, Restrictions, Ownership, Fees and Payment, Confidential Information, Warranties; Disclaimer, Indemnification, Limitation of Liability, Effects of Termination, Access to Data, Survival, and General Provisions will survive expiration or termination of this Agreement for any reason. 11. WARRANTY; DISCLAIMER. 11.1 Limited Warranty. FTR warrants that when used as permitted by FTR and in accordance with the Documentation (i) during the term of this Agreement, the SaaS Service, and (ii) for a period of ninety (90) days from the date of delivery, the Software, in each case will operate as described in the Documentation in all material respects. If Client notifies FTR of any breach of the foregoing warranty, e and exclusive remedy, use commercial reasonable efforts to repair or replace the non- conforming FTR Offering as quickly as is reasonably possible. Notwithstanding anything to the contrary herein, the foregoing warranty will not apply to any Software that is made available free of charge. 11.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 11.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE FTR OFFERING AND AS IS AS AVAILABLE PPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 11.3 Client Data Disclaimer. Client acknowledges that FTR does not edit, and cannot verify, the completeness or accuracy of the Client Data or any information therein. FTR has no control over the content of any Client Data made available through the FTR Offerings, and FTR shall not be responsible for any actual or alleged loss of privilege or other claimed injury due to disclosure of sealed, confidential or privileged information in any Client Data. 12. INDEMNIFICATION 12.1 By FTR. FTR will defend at its own expense any action against Client brought by a third party to the extent that the action is based upon a claim that the FTR Technology infringes any U.S. copyrights or patents or misappropriates any trade secrets, and FTR will pay those costs and damages finally awarded against Client in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If any FTR Technology becomes, Vendor Services Agreement Page 19 of 20 s likely to become, the subject of an infringement claim, FTR may, at its option and expense, either (a) procure for Client the right to continue exercising the rights licensed to Client in this Agreement; (b) replace or modify the FTR Technology so that it becomes non- infringing and remains functionally equivalent; or (c) refund to Client any payments of prepaid Fees made by Client to FTR pursuant to the subsection titled Fees and Payment (to the extent that such payments have not been recouped through credits against accrued Fees), and terminate this Agreement by written notice to Client, in accordance with the subsection titled Notices. Notwithstanding the foregoing, FTR will have no obligation under this subsection or otherwise with respect to any infringement claim based upon (w) any unauthorized use or distribution of the FTR Technology by Client or any of its personnel; (x) any use of the FTR Technology in combination with other products, equipment, software, or data not supplied by FTR or authorized by FTR in writing; (y) any use, reproduction, or distribution of any release of the FTR Technology other than the most current release made available to Client; or (z) any modification of the FTR Technology by any person other than FTR or its authorized agents or contractors. This subsection states remedy for infringement claims and actions. 12.2 Procedure. performance of its indemnification obligations hereunder, Client must (a) promptly notify FTR of any third-party claim, suit, or action for which it is seeking an indemnity Claim provided, that, FTR shall only be relieved of its obligations hereunder to the extent any delay s ability to defend such Claim, and (b) give FTR the sole control over the defense and settlement of such Claim; provided, that, FTR may not enter into any settlement that requires Client to admit liability or pay any sum without the prior written consent of Client, such consent not to be unreasonably withheld, delayed or conditioned. 13. LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN THIS SECTION 13, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FTR OR CLIENT BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS IN ANY WAY RELATING TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY FTR FROM CLIENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO PAYMENT, CONFIDENTIALITY AND INDEMNITY OBLIGATIONS. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH LIMITATIONS. 14. INSURANCE. During the term of this Agreement, FTR will maintain the following insurance coverage: (a) Comprehensive General Liability (including, without limitation, bodily injury and property damage) insurance with policy limits of not less than $1,000,000 combined single limit per occurrence and Compensation Insurance in amounts required by applicable law. 15. GENERAL PROVISIONS 15.1 Governing Law. This Agreement and any actions related thereto will be governed by and under the Federal laws of the United States of America, and, to the extent not superseded by such federal laws, the state of Delaware, without giving effect to any conflicts of law principles that require the application of a different state. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. 15.2 Export. Client agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from FTR, or any products utilizing such data, in violation of the United States export laws or regulations. 15.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. 15.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 15.5 Remedies. Except as provided in the sections rights and remedies under this Agreement are cumulative. Client acknowledges that the FTR Offerings, and Documentation contain valuable trade secrets and proprietary information of FTR, that any actual or threatened breach of the subsections titled Restrictions, or the section titled Confidentiality or any other breach of its obligations with respect to intellectual property rights of FTR will constitute immediate, irreparable harm to FTR for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. 15.6 No Assignment. Neither party will assign, Vendor Services Agreement Page 20 of 20 subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns. 15.7 Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by any event beyond the control of such party, including without limitation, issues arising from bugs or other problems in the software, firmware or hardware of a or network carriers, acts of God, fires, floods, storms, landslides, epidemics, lightning, earthquakes, drought, blight, famine, quarantine, pandemic, epidemic, blockade, governmental acts or inaction, orders or injunctions, war, insurrection or civil strife, sabotage, explosions, labor strikes, work stopp Force Majeure Event efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible. 15.8 Independent Contractors. to FTR is that of an independent contractor, and neither party is an agent or partner of the other. Client will not have, and will not represent to any third party that it has, any authority to act on behalf of FTR. 15.9 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the Initial Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice will be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party. 15.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. 15.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by Client and CEO of FTR.