19-003.00 Atlas Integrated: Website Hosting •
SOFTWARE, DATA, HOSTING AND SERVICES AGREEMENT
This software, data, hosting, and services agreement ("Agreement") is made and entered into
as of the 1st day of January 2019, between Atlas Integrated. ("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.
RECITALS
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
information supplied 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 Atlas Integrated. Page 1
1 4
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 the 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 fails 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: Atlas Integrated
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
Consultant hereunder, Customer shall be deemed to be the author 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 these "work products" shall conform to all levels of
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 Atlas Integrated. 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 REPRESENTATIVE OF 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 set forth herein. Should 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 prior to the Effective Date, through no violation 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. Each 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 Atlas Integrated. Page 3
8 Term, Termination and Suspension.
8.1 This Agreement shall remain in effect until Dec. 31, 2019. 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
all 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 Atlas Integrated. Page 4
11.2 Additional Project Expenses
Typically, 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.
11.3 Signoff
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 taw 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 shall be liable in damages or have 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 supersedes any 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 Atlas Integrated. 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.
Consultant CustomerBy: CL
.a
Title: Loo Title: CJ11( Q( GP�r
Date: t 9 Li l Date: A /
ATTEST:
ristine Bainbridge, Ci y Clerk
APPROVED AS TO FORM:
fic f the'Ci torney
•
Customer Consulting Services Agreement with Atlas Integrated. Page 6
ATTACHMENT A
STATEMENT OF WORK
(Check one)_x_Original; Supplemental Number.
Note: Both parties' signatures must appear for Supplemental Statements of Work.
Consults . •
Customer
By: .�►` By: I` \L •
Title: � . Title: y Au ,(-
Date: , ) l 1s" Date: /4/161
Technical Configuration Work Included:
WordPress website software, maintenance, updates, hosting Et support,
security
Economic Development Website Support (Includes unlimited support Et
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 Atlas Integrated. Page 7
ATTACHMENT B
COMPENSATION
Product / Service Setup Annual Recurring
(1 year term) •
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
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 Atlas Integrated
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 Atlas Integrated. Page 8
Note: Both parties' signatures must appear Attachment B. Compensation.
Consultant4.6Custome •
ci
By: '""mb- By: a/IL Q)7,4AGt_
Title: C C ) Title: (1.1V OAfi
Date: 1 2ij ! I Date: /4,/(q
Customer Consulting Services Agreement with Atlas Integrated. Page 9
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®atlas-integrated.com email address, and company phone number:
• Bug fixes
• Answering general questions
• Virtual Instructor Led Training
• Atlas Integrated 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 Atlas Integrated. Atlas Integrated 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 all 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 Atlas Integrated. 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 Atlas Integrated 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
• Most recent version of Safari on MacOS
• Most recent version of Safari Mobile on iOS
• Most recent version of Android Browser/Chrome Mobile for Android
Atlas Integrated cannot guarantee compatibility with any browser or access method not
defined in the preceding list.
Customer Consulting Services Agreement with Atlas Integrated. Page 1 1