HomeMy WebLinkAbout2009 IDS On-line agreement Svcs. AgreementService Agreement
THIS ON-LINE SERVICES AGREEMENT ("Agreement") is made and entered into this
N>> day of MAP- Cd , 2009, by and between the City of Auburn ("City"), a
Washington municipal corporation, and Innovative Data Solutions, Inc. a 5 corporation
("IDS").
1. Provision of On-line Services.
a. Subject to the terms and conditions set forth in this Agreement, IDS hereby grants to
the City a limited, non-exclusive, non -transferable license to use to IDS PowerDMS
Suite Software ("Software"), which consists of PowerDMS, PowerTest, and
PowerTraining, for the purpose of the City maintaining its Police Department
Policies and Procedures Manual ("Manual") for access by its Police Officers to
conduct online training and testing. The Manual, and all training and testing
materials, completed tests, and other documents and materials related to the Manual
and the City's use of the Software are cumulatively referred to as "City Data."
b. To facilitate the City's use of the Software, IDS shall provide the following services
("Services") to the City.
i. The Software will be hosted on IDS's servers, and the City will be provided
the number of password -protected accounts ("City Accounts") to access to
the Software as are set forth in Section 7a of this Agreement. The City's
access to the Software shall be by means of an internet web page. No
additional software is required, or is provided, for installation on City
computers.
ii Upon request by the City, IDS shall provide the City with an electronic copy
of the City Data, current through the date of the request.
iii. Training and customer support. IDS will provide at a minimum an initial one
hour web -based training for City of Auburn. IDS will provide free user
support via telephone, Monday through Friday, 5am PST to 3pm PST and
24/7 answering service for emergencies.
iv. Data back up. IDS shall maintain a backup copy of the City Data, which
shall be updated on a weekly basis. This data shall be available to the City at
its request.
C. Except for access by IDS employees necessary for the maintenance and operation of
the IDS servers and the Software, IDS shall not allow access to the Manual, or any
other City -related materials, except through a City Account.
Page 1 of 6
2. City Responsibilities.
a. The City shall be responsible for all content material for the Manual, which it shall
upload directly to the Software. The City shall be responsible for managing user
access to the Software. All reports and test results generated by the Software shall be
accessible by the City. No data, except for technical information relating to the
operation of the Software and the IDS servers shall be maintained by IDS relating to
the Manual that is not accessible by the City.
b. The City shall be responsible for ensuring that the City's use of the Software and the
performance of the City's other obligations hereunder comply with all laws
applicable to the City.
The City shall be responsible for managing licenses allocated for City use, and for
providing all user account information necessary to use the Software.
3. Ownership, Protection and Security.
a. All City Data shall remain the property of the City, and IDS shall cease use of all
such material upon termination of this Agreement.
b. Nothing in this Agreement or any other agreement grants the City any licenses or
other rights with respect to IDS's software source code or object code, other than the
right to use the Software as expressly provided herein. IDS shall retain all ownership
in the intellectual property and all other proprietary rights and interests associated
with IDS's Software and all components thereof and associated documentation,
except as expressly provided herein.
4. IDS Representations and Warranties.
a. Service Performance Warranty. IDS warrants that it will perform the Services in a
manner consistent with industry standards reasonably applicable to the performance
thereof.
b. No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH
IN THIS SECTION 4, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS,
AND CITY'S USE OF THE SERVICES IS AT ITS OWN RISK. IDS DOES NOT
MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS
AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES
ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
IDS DOES NOT WARRANT THAT THE SERVICES WILL BE
Page 2 of 6
UNINTERRUPTED, ERROR -FREE, OR COMPLETELY SECURE.
C. Disclaimer of Actions Caused by and/or Under the Control of Third Parties. IDS
DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM
THE IDS SYSTEM AND OTHER PORTIONS OF THE INTERNET. SUCH
FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET
SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES,
ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR
DISRUPT CITY' S CONNECTIONS TO THE INTERNET (OR PORTIONS
THEREOF). ALTHOUGH IDS WILL USE COMMERCIALLY REASONABLE
EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY
AND AVOID SUCH EVENTS, IDS CANNOT GUARANTEE THAT SUCH
EVENTS WILL NOT OCCUR. ACCORDINGLY, IDS DISCLAIMS ANY AND
ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
5. Confidentiality and Ownership. Each party shall instruct its employees, agents, and
contractors of its confidentiality obligations hereunder and not to attempt to circumvent any
such security procedures and devices except as required by law.
a. Cily Data. All City Data shall be subject to regulation and examination by the
appropriate auditors and regulatory agencies to the same extent as if such information
were on the City's premises, and is subject to the Washington State Public Records
Act, Revised Code of Washington Chapter 42.56.
b. IDS Service and Confidential Information. The City acknowledges that it has no
rights in the Service including without limitation any software systems, artwork,
methods, documentation, guidelines, procedures, and similar related materials or any
modifications thereof provided by IDS, and including material displayed on any
Service website such as icons, screen displays and the assembly and arrangement
thereof, except with respect to and as limited by the City's access and use of the same
during the term of this Agreement.
6. Term and Termination.
a. This Agreement shall commence as of the date hereof and remain in effect for twelve
(12) months unless terminated by either party as set forth herein ("Initial Term").
b. This Agreement may be renewed for additional terms ("Renewal Term") equal in
duration to the Initial Term provided City notifies IDS at least thirty (30) days prior
to the end of the Initial Term or a Renewal Term.
C. Upon termination of this Agreement, IDS shall return to the City a pro rata portion of
the annual subscription license.
d. Upon termination of this Agreement, IDS shall provide the City with an electronic
Page 3 of 6
copy of the City Data, current through the termination date. Upon delivery of the
City Data, IDS shall remove the City Data from its servers and delete all backup
copies of the City Data.
7. Payments.
a. Initial Term. City will pay the initial payment of $4,940.00 within 30 days of the
execution of this Agreement. This payment consists of $4,100 for an annual license
for IDS PowerDMS Suite Software and $840.00 for 140 annual password -protected
accounts at $6.00 per account.
b. Renewal Term(s). For each Renewal Term, IDS will continue to provide City with
the Services, and will provide maintenance and support services as described herein,
provided the City issues a purchase order or modification to this Agreement and pays
IDS in advance the annual recurring charges then in effect. If there is an increase in
annual charges, IDS shall give City written notice of such increase at least thirty (30)
days prior to the expiration of the then -current term.
8. Force Maieure. IDS shall not be liable for any damages, costs, expenses or other
consequences incurred by City or by any other person or entity as a result of delay in or
inability to deliver any Services due to circumstances or events beyond IDS's reasonable
control, including, without limitation: (i) acts of God; (ii) changes in or in the interpretation
of any law, rule, regulation or ordinance; (iii) strikes, lockouts or other labor problems; (iv)
transportation delays; (v) unavailability of supplies or materials; (vi) fire or explosion; (vii)
riot, military action or usurped power; or (viii) actions or failures to act on the part of a
governmental authority.
9. Miscellaneous. Neither party may assign its rights or obligations under this Agreement
without the prior written consent of the other party, which shall not be unreasonably
withheld. This Agreement may not be modified or amended (and no rights hereunder may be
waived) except through a written instrument signed by the party to be bound. This
Agreement constitutes the entire agreement between the parties with respect to the subject
matter hereof and shall be governed by and construed in accordance with the laws of the
State of Washington, without giving effect to conflict of law rules, and venue for any action
hereunder shall be in King County, Washington. This Agreement contains the entire
understanding of the parties regarding the subject matter and can only be modified by a
subsequent written agreement executed by both parties. In any action or suit to enforce any
right or remedy under this Agreement or to interpret any provision of this Agreement, the
prevailing parry shall be entitled to recover its costs, including reasonable attorneys' fees.
Sections 3, 5, 11, 12, and 13 of this Agreement shall survive any termination or expiration of
this Agreement.
Page 4 of 6
10. Notices. Any notices shall be in writing by fax or regular mail to the representatives of the
parties listed below unless a party provides prior written notice to the other parry.
CITY OF AUBURN IDS
Jim Kelly, Police Chief �S
Auburn Justice Center
340 East Main Street Suite 201
Auburn WA 98002 (� c7 0 gca,-r� Q- I}� E (3llooKs ��� "�, G� 3��os
Phone: 253-931-3080
3s,� - 79e, - 6895'
11. Indemnification. Each party shall indemnify and hold harmless the other party and its
directors, officers, employees, affiliates an agents, against any claim, demand, cause of
action, debt or proceedings (whether threatened, asserted, or filed) and all related damages,
losses, liabilities, cost and expenses, including reasonable attorney's fees, to the extent that:
(i) it is based upon the indemnitor's breach of a representations, warranty or obligation under
this Agreement; (ii) it arises out of the indemnitors' gross negligence's or willful misconduct
or, (iii) it is based upon the indemnitor's violation of any applicable federal, state or local law
or regulation.
12. Publicity. IDS may list the City as a client. It may not make any claims or assertions that
IDS or its products are endorsed by the City or any of the City's officers, employees, or
agents. City will not allow its employees to act as "spokespersons" for IDS.
13. Relationship of Parties. IDS and City are acting hereunder as independent contractors and
under no circumstances shall any of the employees of one party be deemed the employees of
the other. This Agreement shall not be construed as authority for either party to act as the
other parry's agent or as creating a partnership or joint venture between the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
respective duly authorized officers as of the date set forth above.
City
By:
Name:
Title:
Page 5 of 6
Approved as to form:
Daniel B. Heid, City Attorney
Innovative Data Solutions, Inc.
By:
Name: � os1� vet L r� c..n
0
Title: i ✓ ee " r1 e v1-} -
Page 6 of 6