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HomeMy WebLinkAbout2013-048 a3 �osj�3 MASTER AGREEMENT FOR C (! SOFTWARE LICENCES and PROFESSIONAL SERVICES This Agreement is entered into effective as of: March 5 2013 ("Effective Date") By and Between And Indian River County CLEAR VILLAGE INC. Board of Commissioners 1276 Minnesota Ave 1801 27th Street Suite 1 Vero Beach, Florida 32960 Winter Park, Florida 32789 ("CVI") Attention : Attention : David Loeb Phone : ( ) Phone : (407 ) 951 -8038 Fax : ( 1 e- mail : Whereas CLIENT is a governmental body charged and empowered with the responsibilities to properly manage and maintain the duties in accordance with the Laws of the State of Florida ; and Whereas CVI is a computer software developer and IT services company and hardware reseller experienced in the installation and implementation of software used by the local and county governments to manage their operations and provide public services ; and Whereas CLIENT desires that CVI configure and install the software and services defined in the Scope of Work ("SOW" ) hereunder in accordance with CVI ' s standard procedures and practices ; and Whereas CVI has agreed to proceed with the installation and to provide the services as defined in the "SOW" ; Therefore in consideration of these recitals and mutual promises and agreements hereinafter set forth , the parties agree as follows : 1 . DEFINITIONS, "Services" means all work necessary to "Deliverables" means the list of software perform the services described in this Agreement and licenses, hardware, software and tasks to be provided to develop the Deliverables to be provided by Clear Village under this Agreement, including, but not as identified in the "SOW" . limited to, consulting, analysis , design , programming , "Documentation" means the user testing , conversion , installation, implementation, documentation necessary to instruct users in the demonstrations , maintenance, and support services . efficient use and operation of the Software and all of its "Software" or "Licensed Software" means features , and the technical documentation necessary to the computer software, in object code and source code maintain , support, and enhance the Software, all format , developed by CVI ( whether developed solely written according to generally accepted industry or in collaboration with any other party) in performing standards . the Services under this Agreement and provided to "CPI " means the consumer price index as CLIENT by CVI or otherwise accessed by CLIENT published by the Federal Government. under this agreement . "Scope of Work" and "SOW" Means the list "Purchase Order" means the written of activities , responsibilities and deliverables as document authorizing the commencement of a Work defined in Work Plan Plan and commitment to pay the applicable fees . "Proprietary Rights" means all patents , "Web Site Content" means the text, graphics patent applications and rights to file same , copyrights , and supporting HTML and scripts that comprises the trademarks , trade secrets , know how and all other working web site excluding third party software intellectual property and proprietary rights of any kind . Licensed Software . ORL 297, 896, 905v5 5-31 - 11 "Work Plans" shall have the meaning as set forth in CLIENT under this Agreement, including, section 2 . 1 . without limitation , arranging all meetings, "Recurring Fees" means fees for, i) support of visits , and consultations between the parties , Licensed Software, ii) Hosting Services, iii) Software and for the transfer of Deliverables and Subscriptions . technical information between the parties . The CLIENT Project Manager shall be the primary "Fiscal Year" means the month that a new budget point of contact for CLIENT and shall also be takes effect as per governing law for CLIENT . responsible for receiving all notices under this 2 . SERVICES TO BE PROVIDED Agreement and for all administrative matters . CLIENT may replace the person serving as its 2 . 1 Work Plans : CVI shall develop a written Project Manager upon prior written notice to document that contains a detailed description of CVI . Any written agreement between the the tasks to be performed by CVI (the "Work Project Managers shall be binding on both Plan") , based on the products and services parties . requested by CLIENT and procured through 3 . 3 Staffing . Personnel provided by CVI to release of a Purchase Order by CLIENT . The perform services under this Agreement shall Deliverables, the Payment Schedule, the have the appropriate technical and application responsibilities of the parties, the prerequisites skills to enable them to adequately perform their to performance and the commencement and duties . Clear Village shall use its best efforts to completion dates for the tasks shall be identified assure continuity in staffing of personnel . in the Work Plan and , once approved , shall be considered the SOW for the engagement listed 4 . TIMING. in the Purchase Order. 4 . 1 Efforts. Each party agrees to use commercially 2 . 2 Amendments . CLIENT may , from time to reasonable efforts to fulfill its obligations under time , add or remove products and services this Agreement and to meet the performance identified in the SOW. All amendments to the dates set forth in the Implementation Plan . SOW shall be in writing and signed by the 4. 2 Interdependency of Dates . Each party Project Manager for each party. The fees understands that any variation from the associated with any amendments shall be in performance dates in the Work Plan may writing and signed by the Project Manager for adversely impact project milestones , including , each party . without limitation , the date of completion of 3 . PROJECT MANAGEMENT AND STAFFING. this project. 3 . 1 Clear Village Project Manager . Clear Village 4 . 3 Notice of Delay . Each party agrees to notify shall assign and designate a staff member as its the other party promptly of any factor, project manager ("CVI Project Manager") who occurrence, or event coming to its attention that shall have the principal responsibility for may affect that party ' s ability to meet the overseeing and managing the performance of requirements of this Agreement, or that is likely obligations of CVI under this Agreement, to occasion any material delay in delivery of including, without limitation, arranging all any Deliverable . meetings , visits , and consultations between the 5 . TERMS OF PAYMENT. parties , and for the transfer of Deliverables and technical information between the parties. The 5 . 1 License Fees : CLIENT shall pay CVI the CVI Project Manager shall be the primary point license fees set forth in the Work Plan for of contact for CVI and shall also be responsible licensed software provided therein . Unless for receiving all notices under this Agreement otherwise provided in the applicable Work Plan , and for all administrative matters . CVI may License Fees shall be payable in full by replace the person serving as CVI Project CLIENT upon delivery of Software to Client. Manager with written notice to CLIENT . 5 . 2 Support Fees : CLIENT agrees to pay CVI the 3 . 2 CLIENT Project Manager. CLIENT shall support fees set forth in the Work Plan . Unless assign and designate a person, either staff otherwise stated in the applicable Work Plan , member or consultant, as its project manager support fees shall be invoiced annually , in ( "CLIENT Project Manager") who shall have advance, on the first day of the month following the principal responsibility for overseeing and the day of Delivery of the Licensed Software. managing the performance of obligations of Agreement No: Page 2 of 6 2/27/2013 Clear Village, Inc. 5 . 3 Subscription and Hosting Fees : CLIENT work shall be provided under a separate Work agrees to pay CVI hosting and subscription fees Plan. set forth in the Work Plan . Unless otherwise 5 . 11 Reimbursable Expenses. CLIENT agrees to stated in the applicable Work Plan , Subscription reimburse CVI for all reasonable and customary and Hosting Fees shall be billed quarterly, in out-of-pocket expenses including but not advance , starting on the first day of the month following completion of both the provisioning limited to travel , parking, tolls meals and of the hosted environment and setup of the lodging expenses incurred by CVI in connection with the performance of any Work Plan. Meals subscribed to software shall not exceed CVI ' s then in effect per diem 5 .4 Hardware Fees. CLIENT agrees to pay CVI amount. the fees set forth in the Work Plan for hardware. 6 . CUSTOMER RESPONSIBILITIES Unless the Work Plan states otherwise, all hardware fees shall be invoiced at the time of 6 . 1 Communications. CLIENT agrees to provide delivery. CVI with access to its network using an 5 .5 Other Service Fees . Unless otherwise stated in industry standard , gateway to gateway VPN via the applicable Work Plan, CLIENT shall pay all the Internet capable of connecting to CVI ' s fees for Services , other than Recurring Fees, on Cisco VPN appliance. CVI requires access to a time and materials basis according to CVI ' s servers and other hardware to provide support then current rates for Services . CVI will and CLIENT agrees that CVI shall not be invoice monthly for Services as used . required to provide support if access is denied . 6. 2 Security . CLIENT shall , at its own expense , 5 . 6 Payment Terms. The fees and terms of prompt payment set forth in the Payment Plan protect its network, data and computer services shall be payable to CVI as set forth in the and protect against any unauthorized access to Payment Schedule and Fees of the applicable such facilities and computer viruses. CVI shall Work Plan . Unless otherwise stated in the not be responsible for any security breach or applicable Work Plan , all invoices shall be virus and expressly disclaims any liability for payable in accordance with the Local loss or damage caused by the unauthorized Government Payment Act F. S . 218 . 70 et seq . access or virus to CLIENT ' s computer systems . 5 . 7 Late Payments : CVI may assess a late fee for 6 . 3 Security Policy . CVI agrees to abide by the unpaid invoice each month for all Late CLIENT ' s published security policies . Payments . 5 . 8 Increases in Fees . Increases in Recurring Fees 7 . OWNERSHIP AND LICENSES. shall take place only on the first day of the 7 , 1 Ownership by CVI . The Deliverables and all month of CLIENT ' s Fiscal Year and shall not elements of all Deliverables shall be exclusively exceed CPI plus 2% for the first ten ( 10) Fiscal owned by CVI . CVI shall exclusively own all Years from the effective date of the Agreement. Proprietary Rights embodied in or pertaining to CVI will provide written notification of fee the Deliverables and any portions of the increases at least thirty (30) days prior to the Deliverables made or conceived by CVI new Fiscal Year in which the fees will become including the right to Copyright or Patent except effective . only that Web Site Content shall be jointly 5 . 9 Fee Period . Service Fees and rates stated owned by CVI and CLIENT . under any Work Plan shall remain in effect for 7 . 2 LICENSES . All software originating with CVI 12 months from the date of Work Plan unless shall be provided to CLIENT under a software otherwise specified in the applicable Work Plan . License to CLIENT to allow CLIENT to use the 5 . 10 No Cost to self host. In the event CLIENT software. In no event shall CLIENT have the elects to host the licensed software, CVI shall right to grant sublicenses for use or copy of the not charge any additional fees, except only that CVI software. Upon full payment of License CVI may charge fees , either under a fixed price and Project Fees under a Work Plan, CVI shall or time and materials at CLIENT ' s request to grant a perpetual , non-exclusive, irrevocable assist CLIENT with setup and configuration of License to use the Licensed Software . CVI ' s software on CLIENT ' s computers . Such 7 . 3 Third-Party Rights. In performing services under this Agreement, CVI agrees not to design , Agreement No: Page 3 of 6 2127/1013 Clear Village, Inc. I develop or provide to CLIENT any items that 9 . 2 No Export and Use. Neither party shall export, infringe any Proprietary Rights , privacy, disclose, share, or otherwise transmit, directly publicity or other rights of any person or entity . or indirectly, any Confidential Information to 8 . REPRESENTATIONS AND WARRANTIES. any person or entity nor disclose any Confidential Information without the other 8 . 1 Third Party Rights . CVI warrants that none of party ' s prior written consent the written or recorded material prepared for 9 . 3 Duration . The obligations set forth in this CLIENT by CVI pursuant to the Agreement, or Section 9 shall be in effect during the term of any portion of it, nor the use of description this Agreement and shall survive indefinitely thereof, violates or will violate any copyright, after termination of this Agreement. trade scret or other intellectual property right or privacy or ike right to a third party . CVI agrees 9 .4 Use of Trademarks . Neither party shall , to inform CLIENT promptly, in wirting, in the without the other' s written agreement, use any event CVI becomes aware of such a claim . trademark, service mark, trade name, logo or 8 . 2 Qualifications . CVI warrants that the technical other commercial or product designation services provided by CVI shall be rendered by belonging to the other . qualified personnel who will perform the tasks 10. INDEMNIFICATION. assigned to CVI with good professional practice Clear Village agrees to indemnify, defend , and in accordance with the current state of the art hold CLIENT , its officers , directors , employees , involved . representatives , agents, and the like harmless with 8 . 3 DISCLAIMER . Except for the forgoing respect to all liability, loss, damage, claims , actions and express warranties CVI disclaims all expenses ( including attorneys ' fees) based upon or warranties, either expressed or implied, with arising out of (a) any infringement by the Deliverables respect to the written and/or recorded of any patent, copyright, trade secret, or other material prepared for os supplied to proprietary right of any third party. CLIENT pursuant to this Agreement, 11 . TERMINATION. including, but not limited to any warranties as to the merchantability of such materials or 11 . 1 By Either Party . Either party shall have the fitness of such materials for a particular use. right to terminate this Agreement upon written 9 . CONFIDENTIAL INFORMATION. notice upon the occurrence of either of the following events : 9 . 1 Nondisclosure . Except as necessary to perform 11 . 1 . 1 Default. If the other party defaults the Services and except as otherwise expressly in the performance of any of its material permitted under this Agreement, both parties obligations under this Agreement and such default shall maintain the confidentiality of, and shall continues for a period of thirty ( 30) days after not, directly or indirectly , disclose or use , the receipt of written notice specifying the nature of Confidential Information of the other party. As the breach . used in this Agreement, the term "Confidential Information" means and includes all source 11 . 1 . 2 Convenience. This Agreement code, product specifications , client lists, shall be for an initial term on twelve ( 12 ) months . business goals, finances, planned or proposed Thereafter, the Agreement shall automatically products , manuals , documentation and any renewal for additional periods of twelve ( 12) information labeled as "Proprietary" , or months , unless terminated by either party pursuant "Confidential" . Both parties shall disclose to this Section . Either party may terminate this such information only to employees who require Agreement with sixty (60) days notice prior to the such knowledge of use in the ordinary course end of the then current term, and scope of their employment under this Agreement. Both Parties agree to ensure that 11 . 1 . 3 Ceases Doing Business, Etc. If the any employees or approved subcontractors who other party ceases conducting business in the are in receipt of any Confidential Information normal course, admits its insolvency, makes an are bound by an appropriate non-disclosure assi rgnment for the benefit of creditors , or becomes agreement . Confidential Information shall not the subject of any judicial or administrative include documents considered to be "Public proceedings in bankruptcy, receivership or Records" pursuant to F. S . Chapter 119 . reorganization. Agreement No: Page 4 of 6 2/27/20/ 3 Clear Village, Inc. 11 . 2 Deliverables. If this Agreement is terminated acknowledge that employees who are engaged for any reason, CVI shall advise CLIENT of the in computer-related activities possess special , extent to which performance has been unique and extraordinary technical talents completed through the termination notice date, which are in great demand in the present and collect and deliver to CLIENT all economy and further recognize and Deliverables , including, without limitation, all acknowledge that each party has incurred work-in-progress . CVI shall be paid for all work substantial expense in recruiting and training performed through the date of receipt of notice such employees and would incur even greater of termination. expense if required to replace any such 12 . INSURANCE employee. Therefore, both parties agree not to recruit or employ, either directly or indirectly, a 1201 Insurance Coverage. During the term of this present employee of the other party during the Agreement, CVI shall maintain insurance term of this Agreement and for a period of six coverage as follows : (6) months thereafter without the other party ' s Insurance Maximum Coverage per prior written consent. occurrence. 13 . 3 Injunctive Relief. CLIENT and Clear Village Workmans Compensation Minimum amount agree that in the event of any breach of Section and Employer Liability required by law. 11 monetary damages may not be a sufficient Automobile Liability $ 1 ,000,000 remedy or protection for the aggrieved party; Data Processing Errors & $ 1 ,000,000 and that the aggrieved party shall be entitled to Ommissions . injunction or other relief as may be deemed Commercial General Liability : proper or necessary by a court of competent General Aggregate $ 1 ,000,000 jurisdiction without the need to post a bond . Products $ 190009000 13 .4 Delays . Neither party shall be liable to the Each Occurrence $ 1 ,000,000 Fire Damage $ 1 ,000,000 other party for any delay or failure to perform Medical a Expenses $ 10,000 its obligations if such delay or failure arises from any cause beyond the reasonable control of that party . 12 .2 Certificate : Upon request, CVI shall provide CLIENT with certificate( s) of insurance which 13 . 5 Return of Materials . Upon termination of this shall be sent directly by the insurance agency Agreement, both parties shall deliver to the and shall designate CLIENT as an additional other, all Confidential Information and other insured . materials, including, without limitation , all source code , flow charts, diagrams, drawings , 12 . 3 Expiration : CVI shall use all commercially blueprints , keys , tools , business notes , reasonable efforts to notify CLIENT with at memoranda, specifications , devices , and least thirty ( 30) days written notice prior to the documents . Except as may be necessary to expiration of cancellation of coverage afforded defend against any legal claims . and held in under the applicable policies . confidence my legal counsel , each party shall 13 . GENERAL TERMS AND CONDITIONS not retain any photocopies , facsimiles , tapes or other copies of any of the materials or 13 . 1 Independent Contractor . CVI is an Confidential Jnformation . independent contractor and nothing in this 13 . 6 Notices . All notices given under this Agreement shall be deemed to make CVI an agent , employee or joint venturer of CLIENT . Agreement shall be in writing and mailed by regular Neither CVI nor any employees , agents or first-class mail or expedited mail subcontractors of CVI shall be entitled to any service, postage prepaid and addressed to the benefits that CLIENT provides for its own parties at the addresses first set forth above or at employees , including, without limitation, such other addresses as theparties may worker' s compensation and unemployment designate in writing. Notices sent via email insurance. CVI shall be solely and entirely shall be deemed given once the receiving party responsible for CVI ' s acts and the acts of CVI ' s acknowledges receipt of the email . employees , agents and subcontractors . 13 .7 Amendment . No provision of this Agreement 13 . 2 Non-Recruitment; Non-Solicitation of may be modified except by a written document Employees . CLIENT and CVI recognize and Agreement No: Page S of 6 227/2013 Clear Village, Inc. signed by a duly authorized representative of equity. Notwithstanding anything to the each party. contrary contained herein, the liability of CVI 13 . 8 Assignment. CVI may subcontract or assign for any breach of it obligations under this this Agreement including any of CVI ' s rights or Agreement and/or for any indemnity obligation obligations under this Agreement with 30 days hereunder shall be limited to the aggregate prior written notice to CLIENT. amounts received by CVI under the specific work plan for which the breach occurred. and in 13 .9 Waiver. No provision of this Agreement shall no event shall CVI be liable for lost profits or be deemed waived and no breach excused, special or consequential damages. unless such waiver or consent shall be in 13 . 14 Compliance with Laws. In connection with writing and signed by the party claimed to have the performance of services, CVI shall fully waived or consented. Any consent by any party comply with all applicable laws , rules and to, or waiver of, a breach of the other party, regulations of all authorities, including, without whether express or implied, shall not constitute limitation, immigration, occupational safety, a consent to, waiver of, or excuse for any civil rights, and insurance laws. different or subsequent breach . 13 . 10 Binding Effect. This Agreement shall be 13 . 15 Governing Law. This Agreement shall be binding upon and inure to the benefit of CVI governed by and interpreted according to the and CLIENT and their respective legal laws of the State of Florida. representatives, successors and authorized 13 . 16 Survival of Certain Obligations. After assigns. expiration or termination of this Agreement, 13 . 11 Counterparts, This Agreement may be those provisions that specifically provide for executed simultaneously in one or more survival beyond expiration or termination , and counterparts each of which shall be deemed an all provisions, if any, regarding indemnification, original , but all of which together shall warranty, limitations of liability, and confidentiality and/or protection of proprietary constitute one and the same agreement. rights and trade secrets shall survive indefinitely _ 13 . 12 Severability . If any provision of this or until the expiration of the time period Agreement shall be prohibited or unenforceable specified elsewhere in this Agreement with by any applicable law, the provision shall be respect to the provision in question. ineffective only to the extent and for the 13 . 17 Entire Agreement. This Agreement constitutes duration of the prohibition of unenforceability, the entire agreement between CVI and CLIENT without invalidating any of the remaining with respect to the subject matter of this provisions. Agreement and supersedes all earlier 13 . 13 Remedies. The rights and remedies provided agreements and understandings, oral and herein shall be cumulative and in addition to written, between the parties. any other remedies available at law and in The parties have signed this Agreement as of the date first written above. CLIENT4seph CL R VILLAG INC By: By. E . Flescher Titlrman *ovum Title: e `� h! ++° 6 ° C Date : March 5 , 2013 a°• G� MISj\ S/ONF Date. 6 O • . 1T//y+ iV . 3 r' APPROVED AS TO FO M ?�:AN LSUFF I Y 4r4 13Y C�VN;a;°V BY ,,. WILUA K. DEB DEPUTY COUNTY ATTORNEY Agreement No: Page 6 of 6 2/27/2013 Clear Village, Inc.