Loading...
18-046.00 Community Systems: Sofware Hosting & Services Oil SOFTWARE, DATA, HOSTING.AND SERVICES AGREEMENT � t�dlac This sof re, data, os ing, and services agreement ("Agreement") is made and entered into as of the cn , between Community Systems. ("Consultant"), whose present address is 1860 Blake St, Suite B101, Denver, CO 80202, and the City of Spokane Valley ("Customer"), whose present address is 10210 E. Sprague AVE, Spokane Valley, WA 99206. RECITAL ___. _ . _. . .. _ ... _ ._ WHEREAS Customer desires that Consultant render certain professional services to Customer, such work generally described as website software, maintenance, updates, hosting and support and Consultant is willing to perform such work upon the terms and conditions set forth herein; NOW, BE IT THEREFORE AGREED, in consideration of the mutual benefits, agreements, covenants and promises herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Scope of Services. Consultant shall perform those certain services specified on the Statement of Work attached hereto as Attachment A ("Consultant Services"). Consultant shall not be required to perform work not specifically described in the Statement of Work. The parties may mutually agree in writing from time to time on additions or deletions to the Statement of Work, however Consultant shall not be required to perform such additional work until a written agreement is reached as to the time and cost of such additional work and an Amendment To Statement of Work is signed by both Consultant and Customer. In the event of any conflict between the terms of this Agreement and the Statement of Work, the Statement of Work shall control. 2. Performance of Work. Consultant shall provide Consultant Services in accordance with the Statement of Work. Consultant shall have sole discretion and control over the work of Consultant's employees, agents and contractors in the performance of the work under this Agreement and the manner in which such work is performed. Consultant may use subcontractors or contract labor or services to perform certain portions of the work. 3. Customer Duties and Responsibilities. 3.1 Customer shall make available in a timely manner at no charge to Consultant such data, documentation and materials, together with timely access to appropriate personnel of Customer and such resources of Customer as Consultant may reasonably need for the performance of Consultant Services. 3.2 Customer shall be responsible for, and assumes the risk, of any problems resulting from the content, accuracy, completeness or consistency of the data, materials and _A___._informationsupplied-to-Consultant.— 3.3 Customer shall appoint and designate a Customer representative who shall provide professional and prompt liaison between Consultant and Customer. Primary guidance and direction for Consultant with respect to the services performed hereunder shall come from such Customer representative. 3.4 If required for the performance of Consultant's work, during such time as Consultant is on Customer's premises, Customer will provide at no charge to Consultant for Consultant's use a workspace and access to the appropriate Customer computing resources Customer Consulting Services Agreement with Community Systems. 1/15/2018 Page 1 and environment, including phone, fax and other mutually agreed office equipment and material needed for the work Consultant is performing pursuant to this Agreement. 4. Compensation. 4.1 Consultant's compensation for the Consultant Services shall be as set forth in the Compensation Schedule set forth in Attachment B hereto. 4.2 Customer shall be responsible for all reasonable out-of-pocket costs (not including day to day operating expenses such as routine photocopying, long-distance telephone) incurred by Consultant and_Customer in connection_with_performing.She Consultant .,__.. " " Services,including, but not limited to, out of the area travel, specific reimbursable expenses for photography, stock art and illustration, image searching, hosting, printing and press checks. Customer shall be responsible for payment of all sales, use, excise and other applicable taxes, duties and similar levies on the service provided hereunder or on any equipment, software, license, use, royalty or similar product or service used in connection with performance of the work. 4.3 Unless otherwise specified in this Agreement, all invoices for Consultant Services and out of pockets costs and taxes shall be due and payable within thirty (30) days of receipt. Interest shall accrue on any unpaid amounts at the rate of 1.0% per month from the date such sums were due. Consultant shall have the right to suspend (including but not limited to turning off access to websites) providing of Consultants Services at any time without penalty or liability for breach of this Agreement where Customer faits to pay when due invoices for Consultant Services, costs and taxes; provided Consultant shall provide at least seven days written notice to Customer prior to discontinuing access to website. 4.4 Customer may be required to pre-pay for licenses, royalties and fees for art and imagery in order to ensure timely delivery of the same. 4.5 Please make checks payable to: Community Systems Mail to: 1860 Blake St, Suite B101, Denver, CO 80202. 5. License and Intellectual Property Rights. 5.1 Customer acknowledges that it is not and will not be the author or owner of any code, graphics, data or documentation provided to Customer by Consultant where such code, graphics, data or documentation consists of pre-existing know how, generic, licensed or non-unique software components, structure, architecture, subroutines, functions, algorithms, formulas, third party tools, libraries and programs which Consultant may make use of or incorporate into the work and to which Consultant or and third party licensor has prior copyright ownership ("Pre-existing Materials"). The Parties recognize and agree that the code, graphics data or documentation comprising the work performed by Consultant for Customer, other than Pre-existing Materials, is a "work made for hire", and that, provided Customer makes payment in full of all amounts from time to time required to be paid to — " • C&Kiltanl'"1—iePeunder;Cato—Fr er shall'beifeemed li be Tie iuthor of such work. Contingent upon the payment in full to Consultant, Consultant grants Customer a personal, royalty free, non-transferable right and license to use and modify the work performed by Consultant hereunder, subject at all times however to the rights of others in the Pre- Existing Materials. 5.2 Consultant may retain a copy of any such work for the purpose of displaying specimens or exemplars of their services to third parties, without written approval from Customer. The display of tthes Qrk prrd"ucts_'.shalLcp.nform to_alLlevels_nf__. confidentiality in this agreement and shall not require Customer's approval in writing prior to disclosure to any third party. 6. Warranties and Remedies. 6.1 EXCEPT AS PROVIDED IN THIS SECTION, ALL SERVICES AND SOFTWARE ARE DELIVERED WITHOUT WARRANTY OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY)TO CUSTOMER OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR . Customer Consulting Services Agreement with Community Systems. 1/15/2018 Page 2 IMPLIED WARRANTIES OF (1)MERCHANTABILITY; (2) FITNESS FOR A PARTICUALR PURPOSE; (3) EFFORT TO ACHIEVE PURPOSE; (4) QUALITY OR (5) ACCURACY. NO EMPLOYEE, -.- - .-.. - - -.CONSULTANT-,-AGENT-OR-OTHER-REP-RESENT-ATIVEOF CONSULTANT HAS-AUTHORITY--TO---- - BIND CONSULTANT TO ANY ORAL REPRESENTATIONS OR WARRANTIES CONCERNING THE SERVICES PROVIDED HEREUNDER. 6.2 Notwithstanding the foregoing, the services provided by Consultant hereunder shall be performed in a professional and workmanlike manner and shall substantially conform to the description of services set forth in the Statement of Work. 6.3 Customer's sole remedy for Consultant's breach of its obligations under this "" • agreement"is as`seffathshere-K-Shou[d-Consultant breach any warranty or representation- - -- in this Agreement, or should Consultant default under any term of this Agreement, Customer shall notify Consultant in writing and Consultant shall use reasonable diligence to remedy such breach within 30 days after receipt of such notice. Should Consultant fail to remedy such breach within such time, Customer shall be entitled to a reasonable abatement of fees hereunder. IN NO EVENT SHALL CONSULTANT BE LIABLE TO CUSTOMER FOR ANY AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID BY CUSTOMER TO CONSULTANT FOR SERVICES AND PRODUCTS PROVIDED HEREUNDER. CUSTOMER FURTHER AGREES THAT IN NO EVENT SHALL CONSULTANT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF CONSULTANT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS GROSSLY NEGLIGENT. 7. Confidential Information. 7.1 Each party may be exposed, or have access, to confidential and proprietary information belonging to or supplied by the other party including, without limitation, Work Product, drawings, analysis, research, processes, computer programs, methods, ideas, know-how, business information (including sales and marketing research, materials, plans, accounting and financial information, personnel records, customer lists, and the like) and any other information either known by the receiving party to be confidential, or designated by the disclosing party as confidential either expressly or by the circumstances in which it is disclosed ("Confidential Information"). Confidential Information does not include information and/or data which: (a) has become publicly known through no violation of an obligation of non-disclosure of any person or entity; (b) was obtained by the recipient from a third party through no violation of an obligation of non-disclosure of any person or entity; (c) was independently developed without any use or reference to Confidential Information and through no violation of an obligation of non-disclosure of any person or entity; (d) has been approved for disclosure in writing by the disclosing party; (e) has been disclosed pursuant to a requirement of law, but only to the extent such disclosure is required; or (f) - - " - - was-in-the-possession-of-the recipient-priorto-the Effective-Date;-throughirwiolation-of-an • " - obligation of non-disclosure of any person or entity, as evidenced by written records. 7.2 Each party agrees, with respect to the other party's Confidential Information, except as expressly authorized herein, and except as may be required by law, that it shall not use, transfer, commercialize or disclose such Confidential Information to any person or entity, except to its own employees or subcontractors, to the extent that they have a need to know or have access to such Confidential information in connection with the __-� - -- performance of this Agreement, and who are themselves bound by similar nondisclosure _ restrictions: ach party shall use at least the same degree of care in safeguarding the other party's Confidential Information as it uses in safeguarding its own confidential information, but in no event shall less than due diligence and care be exercised. The provisions of this Article 7 shall remain in effect for a period of five (5) years following termination of this Agreement or until one of the exceptions set forth in Section 7.1 applies, whichever occurs first. Customer Consulting Services Agreement with Community Systems. 1/15/2018 Page 3 8 Term, Termination and Suspension. - - - --- - -8:1 -- -This-Agreement-shaltremain-in-effect-until-Dec.-31-201-8:- Either-party-may-terminate- - - -- - this Agreement without cause upon 30 days' written notice to the other party. If terminated prior to June 30 of any year, the Customer shall be refunded half of its annual payment. Unless terminated within 30 days of the Term, this Agreement shall automatically be renewed for another calendar year. Upon termination of this Agreement under any of the foregoing provisions, and in addition to any other rights or obligations arising from such termination: (a) each party shall return to the other_party al[Confidential Information of the other party, in whatever form, in such party's possession or control, and shall delete all records containing such Confidential Information, except for a record of payments made hereunder; and (b) all obligations to perform under any current or subsequent Statement of Work shall cease. Nothing contained herein shall be deemed to affect Consultant's right to suspend Consultants Services in the event of Customer's failure to timely pay obligations to Consultant under this Agreement. 9. Dispute Resolution 9.1 In the event of any dispute arising under this Agreement, other than the payment of sums due to Consultant, the project manager for Consultant and the designated representative of Customer agree to meet within a reasonable time after such dispute arises to determine the nature of the dispute and corrective action to be taken to resolve such dispute. If such persons are unable to agree on such corrective action, they shall notify senior management of Consultant and Customer, who shall then meet to attempt to resolve such dispute. If management is unable to resolve such dispute, each party shall have such remedies and defenses as may be available at all and under this Agreement. 10. Indemnification 10.1 To the fullest extent permitted by law, Customer and Consultant mutually agree to indemnify and hold harmless both parties from any claim, harm, injury, loss or damage brought as a result of this contract. 11. Procedures 11.1 Change Request Process Customer may request changes within the general scope of Work ("Change Requests"). Change Requests must be made in writing. Changes to work must be approved by the Customer and Consultant and may include the following: • 1. Additions to or deletions from the specifications. 2. Changes in the time and place of performance. 3. Changes in the scope or nature of the work to be delivered. 4. Changes in the nature and quantity of deliverable work product. If any change affects payments due or time of performance, details must be specified in the Change Request which is approved by the Customer and Consultant. Only authorized representatives of the Customer and Consultant shall make changes to the terms and conditions of this agreement. Neither Consultant nor Customer will be accountable for meeting commitments that have not been agreed to in an approved Change.Request. Customer Consulting Services Agreement with Community Systems. 1/15/2018 Page 4 11.2 Additional Project Expenses - -- - - - - T-ypically -such-items-as-photography image-searching;-hosting; printing,-press -- - - - - checks, travel, etc., are necessary and can change the budget of the project. If a Change Request shall result in additional project expenses, Consultant will use reasonable efforts to outline any changing budget costs as a result of such Change Request and submit such outline to Customer for approval. 1.1.3 Sjgnoff ------- - -— At major project milestones, signoff is required on all project materials by the Customer in written form. Signoff constitutes acceptance of materials for use. Verbal confirmation does not constitute acceptance. 12. Non Hiring Covenant. 12.1 Customer hereby covenants and agrees that during the term of this Agreement and for a period of twenty four (24) months thereafter, Customer and its affiliated companies, including, without limitation, their respective officers, directors or employees, shall not solicit for employment or employ any current or former employee of Consultant or its affiliated companies or current or former independent contractor or member of the contract sales force of Consultant or its affiliated companies ("Restricted Person"). The term "employ" as used in this section shall mean any relationship in which compensation is paid directly or indirectly by Customer for or to a Restricted Person, including, without limitation, direct employment, leased employee, an independent contractor relationship or through an employment agency. The term "former" as used in this section shall mean during the term of this Agreement or the prior 12-month period. 13. General Provisions 13.1 The construction, validity and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, and the parties expressly waive choice of law rules. The parties agree that venue and jurisdiction for any litigation arising out of, related to, or regarding the validity of this agreement shall lie in the District Court for the City and County of Denver, Colorado. 13.2 The relationship of Consultant and Customer established by this Agreement is solely that of independent contractors. Nothing contained herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. 13.3 In the event that Consultant shall be required to commence any action to enforce the terms of this Agreement, Consultant shall in any such action be entitled to an award of it costs and reasonable attorney's fees. _ 13.4____Neither party haltbe_liabl�in_damages of Katie the_right_to_terminate_this._ Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its reasonable control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected, however the inability or failure to pay obligations under this Agreement shall not be excused by the terms of this section. 13.5 This Agreement and its attachments constitutes the entire agreement between the ----- ---parties-with-respect to-the-subject-matter-hereof-and-supersedesny-and-all-other---- agreements, either oral or in writing, between the parties with respect to the matter stated herein. 13.6 This Agreement may be modified or amended only by a writing signed by the party against whom enforcement is sought. 13.7 If any provision of this Agreement is held invalid or unenforceable for any reason, such determination will not affect the remaining portions of this Agreement, and the Customer Consulting Services Agreement with Community Systems. 1/15/2018 Page 5 affected provisions shall be interpreted and enforced to the full extent possible to carry out the intent of such provision - - 13.8-- Failure-to enforce this-Agreement-shall-not-be-a--waiver-of-any-provision of this -- - - -- - Agreement, and a waiver of breach shall not be a waiver of any other or subsequent breach. IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this Agreement to be executed by their duly authorized representatives. Consulta t Custom r By: �� By: alk___ i Title: V Q. `C��k'Vl" Title: (,);---f-y ✓��l P� Date: 8 1 k Date: J �Q L G ATTEST: Christine Bainbridge, City Clerk `' APPROVED AS TO FORM: fit„ Office of - e City Attorney Customer Consulting Services Agreement with Community Systems. 1/1512018 Page 6 ATTACHMENT A STATEMENT OF WORK (Check one)_x_Original; Supplemental Number. Note: Both parties' signatures must appear for Supplemental Statements of Work. Consul ant Customer By: ~ By: 'IA 1' (1‘610,1--- Title: \) i Title: C (/1Q (— �} j Q O Date: 6 lW� 1 Date: lT"I �� p 'B Technical Configuration Work Included: WordPress website software, maintenance, updates, hosting 8: support, security Economic Development Website Support (Includes unlimited support 6t Training) Assumptions • Client is responsible for the accuracy of their own data • Any further work efforts, net defined by this scope, will require an additional work 'authorization' _ _--_. .. _ _. .... ._ _ _. ._ _ ._...._._ . .-- _-.- -... Customer Consulting Services Agreement with Community Systems. 1/15/2018 Page 7 • ACHMENTB- -__ COMPENSATION -.- Pr° duct l ervice- `�fi�=' Y F S�et'u � r r tr Annual tRecurr�ngk y�y � / �; ut'r ^" fa �d`��'MY�'r�M �G a�\N"r f.� �Jt ' ) rEr 1�fi 3'ty7�-yJ' r P^^�RMg drM`.t N`a"4 i. * �1+.year-�torr .y; �?� : f . �. s.a#�w.0:,�<,ray 1, .�,..�e:t,cih.yd, ....s ..n ,.<,�'�s, i.s +�. } n.. (��t �?� t'�? � � F� h.�., Economic Development Website $1,625 Software Hosting (Includes Maintenance, updates, & security) Economic Development Website $1,625 Support (Includes unlimited support & Training) Total $3,250/year *Price provided for products valid through the 28th day of February,2018. Payment Policy Please note that this project is billed on a fixed price, fixed scope basis. Any changes from the agreed to scope will result in a change order. • All fees will be billed every 6 months in advance, starting upon contract signing. The Customer has one way to pay: 1) The Customer will receive invoices via email quarterly in advance. To select this option, check here: X When paying Invoices, please make checks payable to Community Systems Mail to: 1860 Blake Street B101 Denver, CO 80202 All invoices are payable within 30 days (our grace period) or will be subject to a late fee charge of 1:0%-for each 30 days late (12%APR). Should extended delays in payment (beyond 45 days from invoice creation date), Consultant will discontinue Customer's access to the website or web applications provided under the contract; provided Consultant shall provide at least seven days' written notice to Customer prior to discontinuing access. Customer Consulting Services Agreement with Community Systems, 1/15/2018 Page 8 Note: Both parties' signatures must appear Attachment B. Compensation. Consult., t 00 Custom r, By: ' C4,P14 /1. � By: /VA Title: C , D Title: L.Ay iqafrtter Date: + 1. Date: ((6k,/2,p c8 Customer Consulting Services Agreement with Community Systems. 1/15/2018 Page 9 e ,. ATTACHMENT C HOSTING SUPPORT POLICIES Unlimited Free Support Services Any requests due to loss of service or technical issues not the Customer's responsibility will not be billed to the Customer. Additionally, Consultant shall provide the following Support Services free of charge, to up to three designated Customer representatives, using the support®communitysys.corn email address, and company phone number: • Bug fixes • Answering general questions • Virtual Instructor Led Training • Community Systems Digital Economic Development University • User Documentation • Videos/Recordings Value Added, Paid Enterprise Services Consultant also offers the following paid Value added support services. All of the below services will only be performed if previously authorized within a written contract, and will be billed as work is completed hourly: • Data Cleaning Services • Data Integration Services, including importers • Data Entry • Data Collection and Research • Partner Engagement and Communications • Support for Partner relationships • Marketing Automation Consulting • Partner Response Consulting • Third Party Software Integration Website Hosting To ensure that your website performs up to expectations and has easy access to all of the latest updates, we will provide hosting services, billed on a quarterly basis in advance. Further, updates are free if hosting with Community Systems. Community Systems maintains its systems to a 99.85% uptime standard, exclusive of planned maintenance windows. Product Enhancements and Updates Consultant maintains a backlog of suggested non-critical enhancements at alt times that it reserves the right to prioritize as it sees fit. These enhancements can include updates to existing functionality, adding updates that make content that is currently not configurable by the customer configurable, new features not yet imagined, as well as customer requested improvements. Should a single Customer wish to influence the order and pace of improvements, they may pay to accelerate a feature development themselves. If multiple customers wish a feature to be moved up in priority, then Consultant may accelerate the development of that feature at its own cost on its own time table. Any product enhancements asked for by a single customer will be subject to a fee based on level of effort. Customer Consulting Services Agreement with Community Systems. 1/15/2018 Page 10 • ; Service Level Agreement for Products and Hosting As described below, services level agreements are for the current release level of the Product - - - and the-previous-release-level--thereof: -- --- • Problem reporting, tracking and monitoring by electronic mail via the Internet; • Reasonable telephone support to up to three designated contacts for problem determination, verification and resolution on a call-back basis during Company normal business hours of 9 a.m. to 5 p.m. Mountain Standard Time; and • Diligent efforts to promptly resolve defects and errors in the Product in accordance with the following schedule: ERROR PRIORITY (1) RESPONSE (2) RESOLUTION (3) EXAMPLE P1 1 Hour 1 Hour Public site unavailable P2 1 Hour 1 Day Site avail, Feature level issues P3 Same day 5 days Page speed issues P4 Same day 15 days Minor misconfiguration P5 Weekly As scheduled Enhancements (1) Priority: -P1- Catastrophic product or module failures that do not have a viable detour or work around available. -P2- Problems that have been substantiated as a serious inconvenience to users. This includes any priority A failure for which a viable detour or work around is available. -P3+- All other problems which the user can easily avoid or detour for which there is no urgency for a resolution. Maximum File or Database Sizes Certain file sizes are recommended for use with our products, as larger file sizes may impact site performance: • KML file overlays are recommended to be smaller than 2 MB after being generalized. • Video or large graphic files are recommended to be no more than 10MB. • Property or graphic databases over 100MB may be subject to additional hosting or bandwidth fees. Browser Support Restrictions Customer recognizes that web-based works delivered by consultant shall be compatible with a limited number of internet browser applications as outlined below. Websites and web-based applications delivered by Community Systems are maintained for compatibility with the following browsers: • Most recent 3 versions of Microsoft's browser (including versions of Edge) • Most recent 3 versions of Chrome on Windows and MacOS • Most recent 3 versions of FireFox on Windows and MacOS ___.___.__ ___a_-_Most_recent_version_of_Safar-on-MacOS • Most recent version of Safari Mobile on iOS • Most recent version of Android Browser/Chrome Mobile for Android Community Systems cannot guarantee compatibility with any browser or access method not defined in the preceding list. Customer Consulting Services Agreement with Community Systems. 1/15/2018 Page 11