HomeMy WebLinkAbout000307 Original ContractThis Agreement is made on this 27th day of January, 2012, by and between the City of
Port Angeles located at 321 East 5th Street, P.O. Box 1150, Port Angeles, WA 98362, a
municipal corporation under the laws of the State of Washington and hereafter referred to
as "Licensee" and Coplogic Inc., an existing California corporation with a principal place
of business at 231 Market Place, Suite #520, San Ramon, CA 94583 and hereafter
referred to as "Licensor
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
AND CONDITIONS IDENTIFIED HEREIN, THE PARTIES HEREBY AGREE
AS FOLLOWS:
1. DEFINITIONS
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DeskOfficer Online Reporting System (DORS)
SETUP AND LICENSE AGREEMENT
City of Port Angeles 1
Record #000307 I
04
(a) "Documentation" means technical manuals, training manuals, user guides, and
workbooks, as updated and amended from time to time, provided by Licensor to
assist Licensee with the use of Software.
(b) "Software" means all or any portion of the global version of the binary computer
software programs and updates and enhancements thereto, and Documentation
hosted by Licensor on behalf of Licensee or delivered by Licensor to Licensee.
Software includes any third -party software delivered by Licensor and
modifications made to the Software. Software does not include source code to
third party software. Unless specifically stated otherwise, all Software is
delivered to Customer only if and when generally commercially available.
(c) "Install" means placing the Software on a computer's hard disk.
(d) "Use" means (i) executing or loading the Software into computer RAM or other
primary memory, and (ii) copying the Software for archival or emergency restart
purposes.
Coplogic DORS Setup and License Agreement 1
84 ft
2. GRANT OF RIGHTS AND SCOPE OF SERVICES
Licensor hereby grants to Licensee a nonexclusive, nontransferable license to use the
Software on Licensor's servers for the term of this Agreement. Licensor also agrees
to provide the services listed in the Scope of Services attached hereto as Exhibit "A"
and made a part hereof. All requests by the Licensee for additional features or
functionality that fall outside of Exhibit "A" Scope of Services shall be addressed
following the "go- live" date of the Software and shall be quoted separately.
3. LICENSE TERM
This Agreement and this license are effective when the Agreement is executed by
both parties and the license granted to the Software remains in force until terminated
in accordance with paragraph 5 of this Agreement.
4. COST AND FEES
Licensee agrees to pay Licensor the following one time setup and implementation fee
of $5,000.00 (which reflects a "print- only" implementation), plus license and
maintenance fees for the first year of $3,500.00, as outlined in the Subscription,
Support and Maintenance Agreement, for a total of $8,500.00 upon execution of this
agreement. The Subscription, Support and Maintenance period shall commence at
the earlier of 1) the "go- live" date of the Software or 2) February 1, 2012. All
payments shall be made within thirty (30) days from the date of invoice by electronic
funds transfer to the Licensor's account specified in writing, or by check made
payable to "Coplogic, Inc." and delivered to 231 Market Place, Suite #520, San
Ramon, CA 94583.
4.1. Taxes. In addition to other amounts payable under this Agreement,
Licensee shall pay any and all federal, state, municipal, or other taxes,
duties, fees, or withholding currently or subsequently imposed on
Licensee's use of the Software or the payment of the License Fee to
Licensor, other than taxes assessed against Licensor's net income. Such
taxes, duties, fees, withholding, or other charges shall be paid by Licensee
or Licensee shall provide the appropriate authority with evidence of
Coplogic DORS Setup and License Agreement 2
5. TERMINATION
exemption from such tax, duty, fee, withholding, or charge. If Licensor is
required to pay any such tax, duty, fee, or charge, or to withhold any
amount from monies due to Licensor from Licensee pursuant to this
Agreement, Licensee shall promptly reimburse Licensor any such
amounts.
Licensee may terminate this Agreement at any time on 90 days written notice to
Licensor. Licensor shall have the right to terminate this License on 14 days written
notice to Licensee if Licensee fails to pay any amount due to Licensor under this
Agreement or the Subscription, Support and Maintenance Agreement, or if Licensee
fails to perform any obligation required of Licensee under this License or if Licensee
becomes bankrupt or insolvent.
On termination, Licensee will promptly return all copies of the Software to Licensor
or destroy all of Licensee's copies of the Software and so certify to Licensor in
writing within fourteen (14) days of termination.
6. RIGHTS UPON TERMINATION
Licensor has and reserves all rights and remedies that it has by operation of law or
otherwise to enjoin the unlawful or unauthorized use of Software or Documentation.
Upon termination of this License, all rights granted to Licensee under this Agreement
cease and Licensee will promptly cease all use and reproduction of the Software and
Documentation, and Licensee shall return to Licensor or destroy the original and all
copies of the Software and Documentation including partial copies and modifications.
Sections 9, 10, 11, and 12 will survive termination or expiration of this Agreement as
will any cause of action or claim of either party, whether in law or in equity, arising
out of any breach or default.
7. TITLE TO SOFTWARE
Licensor retains title to and ownership of the Software and Documentation and all
enhancements, modifications and updates of the Software or Documentation.
Coplogic DORS Setup and License Agreement 3
Licensee shall not distribute the Software to any persons or entities other than
Licensee's employees as designated solely by Licensee. Licensee may not sell the
Software to any person or make any other commercial use of the software. Licensee
shall retain all copyright and trademark notices on the Software and Documentation
and shall take other necessary steps to protect Licensor's intellectual property rights.
8. MODIFICATION AND ENHANCEMENTS
Licensee will make no efforts to reverse engineer the Software, or make any
modifications or enhancements or derivative works based on the Software without
Licensor's express written consent.
9. WARRANTY
Licensor warrants that from the date of this License, the Software will function given
the original configuration is not replaced or changed by Licensee. Licensor warrants
that to the best of its knowledge, information, and belief, the Software does not
contain any known viruses, back -doors or time bombs, (or similar malicious code), or
undocumented security codes that could prevent Licensee's use of the Software.
THE WARRANTY GRANTED HEREIN IS IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
Licensor's entire liability and Licensee's sole and exclusive remedy for breach of the
foregoing warranty shall be, at Licensor's option, to:
Return to Licensee the maintenance fee for the period in which the Software
did not perform according to this warranty, or
Repair the defects or
Replace the Software.
10. INDEMNITY
Coplogic DORS Setup and License Agreement 4
Licensor shall indemnify, hold harmless, and defend, with counsel acceptable to
Licensee, the Licensee (including its elected officials, officers, agents and employees)
from and against any and all claims (including all litigation, demands, damages,
liabilities, costs, and expenses, and including court costs and attorney's fees) resulting
or arising from performance, or failure to perform, under this Agreement.
Claims which trigger Licensor's responsibility under this Section 10 shall include any
claims that the Software resulting from the provision of Services pursuant to the
attached Exhibit A Scope of Services infringes any patent, trademark, service mark,
copyright, or accidental or intentional violation of a trade secret or other intellectual
property of a third party not included in this Agreement. Licensor shall, in its
reasonable judgment and at its option and expense: (i) obtain for the Licensee the
right to continue using the Software; or (ii) replace or modify the Software so that it
becomes non infringing while giving equivalent performance. Licensor shall not
have any liability for a claim alleging that any Software infringes a patent or
copyright if the alleged infringement was developed based on information furnished
by the Licensee or if the alleged infringement is the result of a modification made by
the Licensor, at the direction of the Licensee or with Licensee approval. Licensee
shall be responsible for maintaining appropriate licenses for software not provided by
Licensor.
Should any claim subject to indemnity be made against Licensor, Licensee agrees to
provide Licensor with prompt written notice of the claim. Licensor will control the
defense and settlement of any claim with respect to which it has a duty to indemnify
under this section 10. Licensee agrees to cooperate with Licensor and provide
reasonable assistance in the defense and settlement of such claim. Licensor is not
responsible for any costs incurred or compromise made by Licensee unless Licensor
has given prior written consent to the cost or compromise.
Notwithstanding the foregoing, Licensee shall be responsible for the actions and /or
omissions of its members (including its elected officials, officers, agents and
employees) while using the Software, including the negligent use, misuse or
Coplogic DORS Setup and License Agreement 5
reproduction of Software. Licensee also agrees to not share Software nor provide
Software to any third party.
11. ATTORNEY FEES
If any legal action is necessary to enforce this License, the prevailing party shall be
entitled to reasonable attorney fees, costs and expenses in addition to any other relief
to which it may be entitled.
12. CONFIDENTIAL INFORMATION
(a) The term "Confidential Information" shall mean any and all information, which is
disclosed by either party to the other verbally, electronically, visually, or in a
written or other tangible form, which either is identified or should be reasonably
understood to be confidential or proprietary. Confidential Information includes,
but is not limited to, trade secrets, computer programs, software, documentation,
formulas, data, inventions, techniques, marketing plans, strategies, forecasts,
customer lists, employee information, financial information, confidential
information concerning Licensor's business, as Licensor has conducted it or as it
may conduct itself in the future, confidential information concerning any of
Licensor's past, current, or possible future products or manufacturing or
operational methods, including information about Licensor's research,
development, engineering, purchasing, manufacturing, accounting, marketing,
selling or leasing, and any software (including third party software) provided by
Licensor. Licensor's Confidential Information shall be treated as strictly
confidential by Licensee and shall not be disclosed by Licensee except to those
third parties with a need to know and that are operating under a confidentiality
agreement with non disclosure provisions no less restrictive than those set forth
herein. This Agreement imposes no obligation upon the parties with respect to
Confidential Information which either party can establish by legally sufficient
evidence: (i) was in the possession of, or was rightfully known by the Licensor
without an obligation to maintain its confidentiality prior to receipt from other
party; (ii) is or becomes generally known to the public without violation of this
Coplogic DORS Setup and License Agreement
Agreement; (iii) is obtained by Licensee in good faith from a third party having
the right to disclose it without an obligation of confidentiality; (iv) is
independently developed by Licensee without the participation of individuals who
have had access to the Confidential Information or (v) is required to be disclosed
by court order or applicable law, provided that Licensee promptly notifies
Licensor in order for the disclosing party to have an opportunity to seek an
appropriate protective order. The Licensee shall not obtain, by virtue of this
Agreement, any rights title or interest in any Confidential Information of the
Licensor. Within fourteen (14) days after termination of this Agreement, each
party shall certify in writing to Licensor that all copies of Licensor's Confidential
Information in any form, including partial copies, have been destroyed or returned
to Licensor.
(b) Licensor acknowledges that the Licensee is a governmental agency and may be
required to disclose certain information under requests made according to
provisions of the Public Records Act. Licensee shall give notice to Licensor of
any request for the disclosure of any information set apart and marked
"confidential," "proprietary" or "trade secret" by Licensor. Licensor shall then
have five (5) days from the date it receives such notice to enter into an agreement
with Licensee providing for the defense of, and complete indemnification and
reimbursement for all costs (including plaintiff's attorney's fees) incurred by
Licensee in any legal action to compel the disclosure of such information under
the Public Records Act. Licensor shall have the sole responsibility for the defense
of the actual proprietary or trade secret designation of such information. The
parties understand and agree that any failure by Licensor to respond to the notice
provided by Licensee and/or to enter into an agreement with Licensee, as set forth
above, shall constitute a complete waiver by Licensor of any nondisclosure or
confidentiality rights hereunder with respect to such information, and such
information shall be disclosed by Licensee pursuant to applicable procedures
required by the Public Records Act.
(c) Licensee shall protect the deliverables resulting from Services with at least the
Coplogic DORS Setup and License Agreement 7
same degree of care and confidentiality, but not less than a reasonable standard of
care, which Licensee utilizes for Licensee's Confidential Information.
(d) The terms of this Section 12 shall survive termination of this Agreement.
Licensor and Licensee acknowledge that any breach of this Section 12 by
Licensee will irreparably harm Licensor. Accordingly, in the event of a breach,
Licensor is entitled to promptly seek injunctive relief in addition to any other
remedies that the disclosing party may have at law or in equity.
13. RELATIONSHIP BETWEEN THE PARTIES
Licensor is, and at all times shall remain, an independent contractor solely responsible
for all acts of its employees, agents, or sub consultants, including any negligent acts
or omissions. Licensor is not Licensee's agent, and shall have no authority to act on
behalf of the Licensee, or to bind the Licensee to any obligation whatsoever, unless
the Licensee provides prior written authorization to Licensor. Licensor is not an
officer or employee of Licensee and Licensor shall not be entitled to any benefit,
right, or compensation other than that provided in this Agreement.
14. CONFLICTS OF INTEREST PROHIBITED
Licensor (including its employees, agents, and sub Licensors) shall not maintain or
acquire any direct or indirect interest that conflicts with the performance of this
Agreement.
15. COMPLIANCE WITH LAW AND STANDARD OF CARE
Licensor shall comply with all applicable legal requirements including all federal,
state, and local laws (including ordinances and resolutions), whether or not said laws
are expressly stated in this Agreement. Licensor shall perform services under this
Agreement using a standard of care equal to, or greater than, the degree of skill and
diligence ordinarily used by reputable professionals, with a level of experience and
training similar to Licensor, performing under circumstances similar to those required
by this Agreement. Licensor certifies that its employees have the training and
experience to perform and complete all services mentioned herein and outlined in
Coplogic DORS Setup and License Agreement 8
Exhibit A.
16. INSURANCE
Licensor shall, throughout the duration of this Agreement, maintain insurance to
cover Licensor (including its agents, representatives, sub consultants, and employees)
in connection with the performance of services under this Agreement. This
Agreement identifies the minimum insurance levels with which Licensor shall
comply; however, the minimum insurance levels shall not relieve Licensor of any
other performance responsibilities under this Agreement (including the indemnity
requirements), and Licensor may carry, at its own expense, any additional insurance it
deems necessary or prudent. Concurrently with the execution of this Agreement by
the Licensor, and prior to the commencement of any services, the Licensor shall
furnish written proof of insurance (certificates and endorsements), in a form
acceptable to the Licensee. Licensor shall provide substitute written proof of
insurance no later than 30 days prior to the expiration date of any insurance policy
required by this Agreement.
16.1. Minimum Insurance Levels. Licensor shall maintain insurance at the
following minimum levels:
(a) Commercial General Liability coverage in an amount not less than
$1,000,000 general aggregate and $1,000,000 per occurrence for
general liability, bodily injury, personal injury, and property damage.
(b) Workers' Compensation insurance as required by the State of
California and Employer's Liability Insurance.
(c) Errors and Omissions Liability Insurance appropriate to the Licensor's
profession. Architects' and engineers' coverage is to be endorsed to
include contractual liability.
16.2. Endorsements. The insurance policies shall be endorsed as follows:
(a) For the commercial general liability insurance, the Licensee (including
its elected officials, employees, and agents) shall be named as
Coplogic DORS Setup and License Agreement 9
additional insured.
(b) Licensor's insurance is primary to any other insurance available to the
Licensee with respect to any claim arising out of this Agreement. Any
insurance maintained by the Licensee shall be excess of the Licensor's
insurance and shall not contribute with it.
16.3. Qualifications of Insurers. All insurance companies providing coverage
to Licensor shall be insurance organizations authorized by the Insurance
Commissioner of the State of Washington to transact the business of
insurance in the State of Washington, and shall have an A.M Best's rating
of not less than "A:VII."
17. REPORTING DAMAGES
If any damage (including death, personal injury or property damage) occurs in
connection with the performance of this Agreement, Licensor shall immediately
notify the Licensee Risk Manager's office and Licensor shall promptly submit to the
Licensee's Risk Manager and the Licensee's Authorized Representative, a written
report (in a form acceptable to the Licensee) with the following information: (a) name
and address of the injured or deceased person(s), (b) name and address of witnesses,
(c) name and address of Licensor's insurance company, and (d) a detailed description
of the damage and whether any Licensee property was involved.
18. GENERAL PROVISIONS
(a) Complete Agreement. This License together with Exhibit "A which is
incorporated herein by reference, is the sole and entire Agreement between the
parties. This Agreement supersedes all prior understandings, agreements and
documentation relating to such subject matter, except for the concurrently
executed Software Subscription, Support and Maintenance Agreement.
(b) Modifications to License. Modifications and amendments to this License,
including any exhibit or appendix hereto, shall be enforceable only if they are in
writing and are signed by authorized representatives of both parties.
(c) Applicable Law. This License will be governed by the laws of the State of
Coplogic DORS Setup and License Agreement 10
Washington. Any suit, claim, or legal proceeding of any kind related to this
Agreement shall be filed and heard in a court of competent jurisdiction in the
County of Clallam.
(d) Notices. All notices and other communications given in connection with this
License shall be in writing and shall be deemed given as follows:
When delivered personally to the recipient's address as appearing in the
introductory paragraph to this License;
Three days after being deposited in the United States mails, postage
prepaid to the recipient's address as appearing in the introductory
paragraph to this License; or
When sent by fax or telex to the last fax, telex number or E -Mail address
of the recipient known to the party giving notice. Notice is effective upon
receipt provided that a duplicate copy of the notice is promptly given by
first -class or certified mail or the recipient delivers a written confirmation
of receipt.
Any party may change its address appearing in the introductory paragraph to this
License by giving notice of the change in accordance with this paragraph.
(e) No Agency. Nothing contained herein will be construed as creating any agency,
partnership, joint venture or other form of joint enterprise between the parties.
(f) Assignment. The rights conferred by this License shall not be assignable by the
Licensee without Licensor's prior written consent. Licensor may impose a
reasonable license fee on any such assignment
(g) Modifications. This Agreement may not be modified orally or in any manner
other than by an agreement in writing signed by both parties.
(h) Waivers. Waiver of a breach or default under this Agreement shall not constitute
a continuing waiver or a waiver of a subsequent breach of the same or any other
provision of this Agreement.
(i) Headings. The heading titles for each paragraph of this Agreement are included
Coplogic DORS Setup and License Agreement 11
only as a guide to the contents and are not to be considered as controlling,
enlarging, or restricting the interpretation of the Agreement.
(j) Severability. If any term of this Agreement (including any phrase, provision,
covenant, or condition) is held by a court of competent jurisdiction to be invalid
or unenforceable, the Agreement shall be construed as not containing that term,
and the remainder of this Agreement shall remain in full force and effect;
provided, however, this paragraph shall not be applied to the extent that it would
result in a frustration of the parties' intent under this Agreement.
19. SIGNATURES
The individuals executing this Agreement represent and warrant that they have the
right, power, legal capacity, and authority to enter into and to execute this Agreement
on behalf of the respective legal entities of the Licensor and the Licensee. This
Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns.
This Agreement may be executed in separate counterparts, each of which so executed
and delivered shall constitute an original, but all such counterparts shall together
constitute one and the same instrument. Any such counterpart may comprise one or
more duplicates or duplicate signature pages, any of which may be executed by less
than all of the parties provided that each party executes at least one such duplicate or
duplicate signature page. The parties stipulate that a photocopy of an executed
original will be admissible in evidence for all purposes in any proceeding as between
the parties
Coplogic DORS Setup and License Agreement 12
IN WITNESS WHEREOF, the Licensee and Licensor do hereby agree to the full
performance of the terms set forth herein.
Licens r
(S i ature)
James Lee
Chief Operating Officer
Coplogic, Inc.
Licensee:
(Typed or Printed Name and itle)
O,Z to 02012 0 /Z012_._
1
(Date) (Date)
Coplogic DORS Setup and License Agreement 13
Exhibit A: Scone of Services
Licensor has designed and built an Online Reporting System for Police Departments that
provides data to a specified database structure. The Online Reporting System uses the
J2EE standard. The system is designed to gather information on crimes from a member
of the general public (user) via an SSL connection. The application will issue a
temporary report number to the user and place the temporary report into an administrative
holding area for review and modification by appropriate administrator. An email is
generated to the user that the report has been submitted. The administrator logs in via an
SSL connection and approves, rejects, edits or prints reports as appropriate. Rejecting a
report deletes it from the system and sends an appropriate email to the user. Approving
the report issues a number, places it in a queue to be exported, and sends an appropriate
email to the user. The administrator can then print the report out.
A. SETUP AND CUSTOMIZATION
Licensee Responsibilities:
1. Coordinate with Licensor to establish schedule for deployment.
2. Provide website header image and one small image for temporary
citizen report and one small image for final printed PDF report, which
is automatically emailed to citizen after report approval.
3. Load provided HTML pages onto City server which links to
Licensor's servers for the application.
4. Provide Licensor with the schema for the desired file format and /or
Database schema and account with read /write access and test
environment with current configuration.
5. Provide timely responses to Licensor's questions, which may arise
during the setup and customization process.
Licensor's Responsibilities:
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1. Coordinate with Licensee to establish schedule for deployment.
2. Load provided images onto the Licensor's secure, redundant network
and register Licensee within the network.
3. Provide Licensee with Administrator password and credentials for the
program.
4. Provide sample operational directives, deployment strategies and
sample press release.
a. Licensor will provide contact personnel at other cities currently
using the system as well as provide suggestions for the
deployment of the system.
b. Licensor will provide instructions on the easy setup of a kiosk
for City Police Department Headquarters lobby, etc.
Completion Criteria:
This task is considered complete after Licensor has delivered listed materials and
the software is active and accessible on the Licensee's website.
B. SOFTWARE CONFIGURATION
Licensee's Responsibilities:
1. Coordinate with Licensor for web training session on administering the
program, using the dynamic creation tools, "Triple Lock" login features,
user account including deploying the "Secure side filing feature
2. Using the administrator account, login in and configure the code tables,
crime types, user account, and dynamic content for Licensee.
3. Review resulting files with Licensor, document any problems, and
collaborate with Licensor on a plan for corrective action(s).
Licensor's Responsibilities:
Coplogic DORS Setup and License Agreement 15
1. Coordinate with Licensee for web training session on administering
the program, using the dynamic creation tools, "Triple Lock" login
features, user account including deploying the "Secure side filing
feature
2. Review resulting files with Licensee, document any problems, and
collaborate with Licensee on a plan for corrective action(s).
Completion Criteria:
This task is considered complete when the DeskOfficer Online Reporting System
is accessible on the web server, reports can be filed and interfaced into the RMS.
C. CONTINUING MAINTENANCE.
Licensee's Responsibilities:
During the term of this Agreement and subject to approval by Licensee,
Licensee agrees to serve as a reference for the Software. Such references may
include activities such as (i) reference calls with mutually acceptable
prospects; (ii) a published "success story" describing the partnership with
Licensor; (iii) the use of Licensee's name in Licensor marketing activities; or
(iv) a favorable reference of Licensor to an industry analyst or at an industry
conference.
Licensor's Responsibilities:
Licensor will provide remote application support and updates in accordance
with the Subscription, Support and Maintenance Agreement.
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