HomeMy WebLinkAboutAgreement - CitySourced, Inc. - Mobile Application Customer Agreement - Signed 2016-12-20CITYSOUKk I.K.
MOBILE APPLICATION CUSTOMER AGREEMENT
This Mobile Application Customer Agreement (this *Agreement"),
I
is
entered Into by And between CitySodrced, Inc ("ProvIder7 havingrg
q principal place of business at,1545 Sawtille, Blvd., Suite 36, Los
Angeles, CA 90025 and the City of Gilroy, California, a municipal
corporation ("Subscriber') and is effective upon signature -b t e
Subscriber (the Effective bate'll' In consideration of the mutual
agreements contained herein, the parties hereto agree as follows:
1.1 General Provider Is an application services provider that
has developed a mobile 'application - , , that,a]164i end users t6_,sqnd
messages to Subscriber via a mobile device (the *Application').
Provider has developed associated software thatalloWs Subscriber
the ability to receive and_ (es'poind-to such messages (together with
future versions of such software made by Provider from timeto
time, collectively the "SciftWare'), as further described on
Schedule A.
1:2 Access. Fees. Commencing no later than sixty (60) days
after the Eff6ctive bate, and provided that.the Sub'scr'iber has
delivered all , necessary assets to . Provider for deployment Provider
shall provide to Subscriber - access to the Software'at the level
described
I
in
F
the attached S66616A via an Internet web 6r6ws&
under the 'terms and conditions of this Agreement and'in
consideration of the fees described in Schedule
1.3. Support Services .Subscriber acknoAiledgesand.agrees
that Providiardoes not providerovide custom development for the
S_oft.Ware,ex cept pUrsdarit.to a separate, Written support and
custom development agreement and at Provider's hourly charges
as defined In Schedule
1.4 . No-Cons61tIn96rAdVlsdiVServIces Subscriber
acknowledges and agrees that Provider is not providing any
c. . o . n
I
sIultifig or advisory services to Subscriber, legal or otherwise, in
connection with, the- Software or Appiication.
1.5 Geographical Rtes: Prom'ptly following the. Effective
Date, Sbbs'crib,dr shall provide 'to Provider the 'geographic' bOunidary
file for-the. applicable covered area (the "Area*) in the form of an
ESR! shape file. Additionally, any geographic data Including, but not
Airrilted to, municipal district boundaries school board boundaries,
shall be provided by the Subscriber at the Providers request if
such data -exists.
IA Promotion In consideration for the rights granted
hereunder by Provideri Subscriber agrees to use its reasonable,
good -faith
1 ,
e, ffOrtt to p1to-rridbe the Application in the Area,mh!64.
includes without limitation (a) posting a link on. Subscri . ber's main
w6bsite page to Providers wehsite,for the downloading of the
Application, (0) emailing'or otherwise notifying t1he'residents in the
Area, of the availability of . the Application and associated.services,
And (c) contacting local news And media outlets about the
availability of the Application and associated services-
2. Intellectual Proper Rights. Subject to the terms and
conditions of this Agree ent, Provider hereby grants to Subscriber
A limited, non-,exclusive, non-transferable, non-sublicensable
license to access and use the versions of the Software indicated
bri. Schedule A as ' sp eci fi6aIllypeemitfedi6reund6t.Th- OS-u, bsd, ib6r
hereby grants to. Provider an Irrevocable, perpetual, royalty-ftee
license to all information stored by the Software and Application
as assigned And used by toe lber ("Data'). Other thah the
rights expressly granted In this Agreement each party retains all 01
Mobile Application Customer Agreement - Confidential
t'. .
its rights to its trademarks,.16gos, trade names, And service marks
collectively, "Brands'), . '.Web tit4(s), technologies, h , hol6gies patents
I
copyrl6ti, trade. secrets, know-how, and other
I
intellectual
property and proprietary Aghts. Without limiting the'generjI4 of
th . e. f6 rdjoiqg (O.Piroviderslshalt all times so] y and exclusively
own All rights, title, and Interest in
I
and to the Software and
Application And all intellectual property rights therein; and (ii)
Substd6eirsihiill At All times solely And eklYthtely.own all rights,
tiitje,," and 'interest in and to the Data, and
I
all
I
intellectual . , property
rights-therein. No Implied licenses Are granted h6rein. Subscriber
agreesgreds not to 6se'Jany reverse . - - c , ompilation,' re'ver'se.engineering,
decompnailon or disassembly techniques or similar methods to
determine any'designstructure, condOOts'and construction
method of i.h.6 .A661icitio"n'br'S6ftW re or replicate the
functionality of - the Application - or S ., oftwa , re . for
I
any purpose.
Subscriber shall not remove, modify, of obscure Any Pr6vl d. ia or
other copyright trademark, and ot-lier" proprietary notices affixed to
or displayed on the Application or Software, and shall not allow
any third party'tq tA4 any s'uc,h'a ctilo . n;
3. Term and Termination
3.1 Im. This Agreement shall "commence on the Effidtive
Date.and continue:until the,Termination Date' listed on Schedule
or terminated in the'manner provided in Section 3.2 Below.'
3.2
1
Termination. lhaildk 'Either party may terminate this Agreement
at anytime upon written notice In the event the other party . has
committed 6 material breach of this Ag'reeme'ht*Vvhichremains
uncured fdrikve (45); days 6bC - of hlreai
afterr".66nn e suc .. ch
except that Provider may terminate this Agreement immedlately
upon watt : en - notice ' for failure by Subscriber to pay the n6qul.nid
fees or,breachof Sections '2 or 4.
3.3 Effect of Termination.. Upon term] natio - n 'for ' a Inyr Ire , ason
Subscriber shall cease All use of tfi6rS6ftwa - r . e and Application.
4.1 , Definklori of Confidential l6fdrmation. Provider and
Subscriber understand and agree that in.the performance of this
Agreement each party may have Access to or TA.y be ek os6d to,
directly or indirectly, - , - 0 6.
access I ..P- ".
theproprietaryronfidentialinformationofthe
other party, including, but not limited to, trade secrets, Web site
usage statistics, niarketing And buslfi6si plant and technical
informkion ('Confidential Informatio'n'').
4.2 ,Protection of Confidential -Information. Each party
agrees that it shall not, d - bring'the,firth"df this Agreement and
after Its termination, use except as expressly authorized by .thiss
Agreement) or disclose Confidential Information of ttfe_other party
Without the prior! ;written' consent of the other. party, u
I
ni
1
e
I
s . s the
receiving party can prove such Confidential Information (i) was
known to the receiving party prior to the Effective Date of this
Agreement or (u) is or becomes publicly 6vahA64 without br . each
of this Agreement, or (iii) becomes known , to the . - receiving party
after rightful disclosure from a third party not Udder An obligation
of confidentiallty,or (iv) was'independ-ently developed by . the
receiving party without the use of the disclosing party's`
Confidential Information. The receiving party Wit, havethe. right to
os C'nfid n ormation withoutbeing in, breach of thisdisc] "0 0. ent*ial I
Agreement to, the. minimum extent necessary to comply With ,'a
lawful court order or government regulation provided that the
receiving provide the.diiclosing hy with advance writtenpa - with ,
notice thereof, and reasonably -cooperates with.the disclosing
DocuSign Envelope ID: 8C29B95B-2F75-4C57-BDDE-E43089E1E868
party to seek confidential or protective treatment of such
Confid ential Information. In addition, the receiving party agrees to
take ail reasonable measures to protect and maintain In
confidence the Confidential information received from the
disclosing party. With respect to Confidential Information11
disclosed by a party, under this Agreement, this Section 4 shall .
supersede any existing agreement relating to confidential
treatment and /or non- disclosurevfC_onfidentiaT Information.
r.
5.1 jBy Both Parties. Each party represents and warrants to
the otherparty that (1) it,has the right to enter into this Agreement,
and perfor.mAs obligations hereunder in the manner contemplated
by this Agreement and (ii) this Agreement shall not conflict with
any other agreement entered into by it
5.2 By - 'Subscriber. Subscriber represents warrants, and
covenants that tshall comply with all applicable1aws of the
United States of America, any State.thereof, and any other
applicable rules, ordinances and regulations in connection with
the performance of Subscriber's obligations under this,Agreement
6. Disclaimer. THE SOFTWARE AND APPLICATION ARE
PROVIDED ".AS IS" WITHOUT ANY WARRANTY, AND SUBSCRIBER'S USE
OF THE SOFTWARE AND APPLICATION OR ANY DAT ACCESSED OR
OBTAINED THEREFROM IS SOLELY AT SUBSCRIBER'. S OWN RISK.
PROVIDER DOES NOT WARRANT THAT THE SOFTWARE "OR
APPLICATION WILL MEET SUBSCRIBER'S REQUIREMENTS OR THAT
THE OPERATION WILL BE UNINTERRUPTED OR ERROR -FREE. TO THE
FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PROVIDER
DISCLAIMS. ALL REPRESENTATIONSAND'WARRANTIES, EXPRESS,
IMPLIED, AND - STATUTORY, CONCERNING THE SOFTWARE AND - --
APPLICATION, OR OTHERWISE RELATED TO THIS AGREEMENT,
INCLODING,.BUT NOT.LIMITED.TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND
ANY STATUTORY WARRANTIES OF NON- INFRINGEMENT.
7: Limitation of Liability . EXCEPT FOR A. BREACH OF
SECTIONS 2 OR 4, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE &HER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, ARISING OUT OF
OR IN RELATION TO THIS AGREEMENT. PROVIDER'S AGGREGATE
LIABILITY AND THAT OF ITS AFFILIATES AND SUPPLIERS UNDER OR I
CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE
AMOUNT PAIDTOR THE SOFTWARE; IF ANY. THIS LIMITATION WILL
APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL.
BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS
OF_THiS AGREEMENT,
8. Force Maleure . Provider shall not be liable to Subscriber
or any other person or entity for any delay or failure in the
performance`of this Agreement or fq"r loss'or damage of any
nature whatsoever suffered by, uch party due to disruption or
unavailability of communication facilities, utility or Internet service
provider failure, acts of war, acts of vandalism, terrorism, lightning,
fre,strike or any other causes beyond Provider's reasonable
control.
9. Verification. Provider may, at its expense, automatically
audit Subscriber's use of the Software and Application, provided
that any such audit shall not interfere with Subscriber's business
activities._,Provide'r shall be permitted to conduct automated
audits at its. discretion, provided that such automated au`dits.take
place without accessing Subscriber's internal Information
technology networks and do not materially interfere with
Subscriber's use of the Software. If an audit reveals that
Subscriber has utilized more users than authorized or.otherwise
Mobile' Application Customer Agreement - Confidential
underpaid fees to Provider, Subscriber shall pay Provider applicable
fees based upon Provider's then- current fee schedule.
10. IndIb6ndent Contractor. The relationship of Patties is
solely that of independent contractors; Nothing :contained in this
Agreement shall be construed to give either party the power to
direct or control the activities of the other or constitute, either
partyas the other's partner, joint venturer, tO- owner, 'agent ,
franchisee or employee.
11. Commercial Item . This Section shall apply if Subscriber
is part of the United-States government, or is otherwise subject to
regulatlons: promulgated by the United States government for the
procurement of goods and services. The Software and Application
are both "commercial items" under FAR §2101 and consist of
commercial computer software" and 'commercial computer
software documentation' under. FAR §12.212 and DFARS §227 -
7202. Any use, duplication, or disclosure of the Software or
Application or associated documentation by Subscriber is
governed solely by the terms of this Agreement Arty technical
data.customarily'provided with the Software or Application shall
also lie governed by the terms of this Agreement pursuant to FAR
12.211. Further, the parties acknowledge thafall items or
services ordered and delivered under this Agreement are
conimercial items as defined under Part 12 of the Federal
Acquisition. Regulation (FAR). in' particular, Provider agrees to be
bound only by those Federal contracting clauses that apply to
commercial" suppliers and that are contained in FAR 52.212-
5(e)(1) (OCT 2003).. Further, in the event that the parties negotiate
or agree upon a change in the price provided in'this Agreement, or
should Provider become entitled to An equitable adjustment in the
price, Provider shall not be: required to comply with the contract
cost principles or cost accounting standards of the FAR.
12. Nft:
12.1 fees All Fees listed on Schedule A are exclusive of alt
taxes; billed on an annual basis in advance; and, due upon receipt
of.., nvoice. This secures site, servers and resources necessary to
begin project Payments over 45 days from initial contract start
date will accrue interest at a rate of one (1%) per month. Renewal
payments made after contract renewal date will accrue interest at
a rate of one (it) per month.
12.2. Taxes. Our fees do not include anytaxes, levies, duties
or similar. governmental assessments of'any nature, including; for
example, value= added, sales, use pr withholding taxes, assessable
by any jurisdiction whatsoever (collectively;'Taxes °). You are
responsible forpaying all Taxes associated With Your purchases
hereunder. If We have thelegal obligation to pay or ect Taxes
for which You are responsible under this Section 12,:.We will
invoice You,and You will pay that amountunless'You provide Us
with a valid tax exemption certificate authorized by the
appropriate taxing authority.:For clarity, we are:solely.responsible
for taxes assessable against us based on our income,.; property and
employees.
12.3 Payments. Ail payments` should be made "directly to
ChySourced, Inc., and will not be deemed received until actually
received in Provideroffices. Provider mailing address. for all
payments is:
CitySourced, Inc.
1545 Sawtelle Blvd., Suite 36
Los Angeles, CA 90025
13. Miscellaneous. This Agreement contains the entire
agreement of the parties, and supersedes (i) any and all previous
or contemporaneous agreements with respect io`the subject
DocuSign Envelope ID: 8C29B95B-2F75-4C57-BDDE-E43089E1E868
matter, hereof, whether oral or written and (ii) the End User
Agreement contained on the Application. In addition, any
purchase orders Issued by any entity other than Provider shall be
valid only for the purpose. of identifying this contract for reference
purposes only, and any terms included in such purchase orders are.
void and shall be of no effect This Agreement shall be binding and
shall inure to the benefit of the parties: hereto and their'respective
successors and permitted assigns. This Agreement may not be
assigned by Subscriber without Provider's prior written consent,
such:consent.not to be unreasonably withheld. Provider may
assign, delegate and/or subcontract anyor atl of Fits rights or
obligations hereunder. Any attempted assignment,ln'.violation of
the foregoing shall be null and void. Ail notices and consents
required or, permitted to be given.under this Agreement shall be in
writing-to the parties at the addresses designated herein or to
such other address as either party. may designate to the other by
written notice, and shall be effective upon receipt Written notice
shall be made in the form::of a certified letter, confirmed facsimile
transmission,oracknowledged receipt of electronic mail. Receipt
shall be;deemed to have occurred: four days following mailing of a
certified lettet-uoon receipt of confirmation of fax; and.Li— Pon
receipt of confirmation of receipt of e-mail; This Agreement:shall
be governed in all respects, including validity, interpretation and
effect, by the laws of the. State of Caliifornia, Without reference to
the conflicts of laws rules,or any other rules that would result in
the application of a different body.of law. If any part of this
Agreement shall be. heidto be void. or unenforceable, such part
will be treated; as severable, leaving valid the remainder of this
Agreement notwithstanding the part or parts found to be void or
unenforceable. No waiver shall be effective unless,'it is in writing
and.signed by an authorized representative of the waiving party,
and any, such waiver shall only be applicable to the specific
instance referenced in such writing. This Agreement may be
executed in two counterparts, each of which shall be deemed to
be an original, and both of which together shall constitute one
contract Faz copies of signatures shall also be treated as
originals for purposes .of this Agreement. Subscriber
acknowledges and agrees that Provider retains the right at any
time to change'.the- features, functionality and took- and -feel of the
Software ,and Application. The _headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect
the meaning hereof. Anyoutstanding payment obligation of
Subscriber, the restrictions'. and ownership provisions, of Section 2,
and all of Sectlons 3.3, 4, 6,7, 11 and 13, and any other term
hereof which contemplates continuing effectiveness, shall survive
the termination or expiration of this Agreement for any reason.
14. Referral Subscriber may know of some organization,
municipality, government or other entity that may benefit from
Mobile Application Customer Agreement - Confidential
Provider's services ( "Referred Party"), which Subscriber.wishes to
refer to Provider (a "Referral "). A,Two Hundred and Fifty Dollar
250) credit (the "ReferraI - Creditl wll be applied toward
Subscriber`s next subscription billing cycle for each such Referral
provided that the following,conditions are,mefi:(1) the Subscriber
notifies Provider 6f a Referral via.an email to
info @citysourced.com' ( "Referral Notice), which will also include
a carbon copy (cc:) to the Referred Party; (ii) the Referral Notice .
must proceed any:written or verbal corfirmation by the Referred
Party to Provider to engage its services, (iii) Provider and the
Referred Party must enter into a contract for'the Provider's
services within twelve (12) months of the Referral' Notice; and (iv)
the initial fee to be paid'by the Referred Party to Provider for the
engaged services has been received Subscriber:shall not be
entitled to any additional compensation or`expense
reimbursement with regard to the Referral. in the event that
Provider and Subscriber have terminated their engagement, no
Referral Creditwill be owed or due "to Subscriber.
15. Acceptance. IN WITNESS WHEREOF, the parties. have
caused -this Agreement to. be executed by their duly authorized
representatives effective as of the Effective'Date.
PROVIDER: VO4 by,
Signature:
Name: Jasonn Koies e
Title: Founder & CEO
Date: 12/20/2016
SUBSCRIBER:
Signature:
Name: -
Title: -
Date: E L6
Approved as to F®rM
Gilroy City Att0MV9 OftIGO
PY
City MOM
DocuSign Envelope ID: 8C29B95B-2F75-4C57-BDDE-E43089E1E868
SCHEDULER
ni, : t ;id a
Software Package Name Fee Term
O Enterprise Plus Mobile PaaS See`below. The "Initial Term" shail'66 for one (1) calendar -year from the
Enterprise Mobile PaaS
1,000
Effective Date,(the "Termination Date ° }. Upon the expiration'of
subsequent.
0 Native'iPhone Application 0
Initial Term, the. "term will continue to auto-'renew. to
O Gtyworks Web, Portal
0
annual terms subject to any fee increases implemented, by.the
0 Mobile Optimized HT ML5 Application 0
fees 'Provider in writing of its intentionProviderunlessSuhscritiernoU
not to extend ,the term at least thirty (30) days prior to the
Termination Date.
For a fun listing of software features: contact`Citysourced Sales
I SOFTWARE FEES: Fees are locked in for Initial Term.: After Initial Term, the fees may be modified by Provider by written notice to
subscriber thirty (30) days in advance of such modification. Any and all custom software development performed by Provider
included in' the fees below are billed at current hourly rates and subject.to an agreed upon statement of work:'All pric6telow are,in,
US boliars' ,All checked aQpy
Product One Tlme`Setup Annual Recurring
0 CitySourced Service Requests 3,500 7,200
0 Pro SeNices Expedited Setup & Configuration 1,000 0
0 Native'iPhone Application 0 0
0 Native. Android Application 0 o.
0 Mobile Optimized HT ML5 Application 0 0
3. PRidkfi SUMMARY:
Year One (1) Setup Costs. 4,500
Year One (1) Annual Recurring Costs 7,200
Year One (1) Total 11,700
Year-two (2) and After Annual Recurring Costs (subject to the' in Section 1?above) 7,200
Mobile.Application Customer Agreement 7.Confidential 4
DocuSign Envelope ID: 8C29B95B-2F75-4C57-BDDE-E43089E1E868