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#10-5486 (DSI) CLIENTTRACKTM Subscription Agreement Organization Name: Collier County Board of Count v Commissioners Initial Number of Active User Seats: 75 Initial Number of Agencies: 8 THIS AGREEMENT, made this J-7 f"day of_Ji1_Y; 1 ,20LDby and between Data Systems International ("DSI"), a Utah corporation, having a principal place of business at 545 East 4500 South, Suite E260, Salt Lake City, Utah 84107 and Collier County Board of Count v Commissioners ("CUSTOMER"), with a principal place of business at 3301 Tamiami Trail East. Naolcs. FL 34112; and set forth the terms and conditions ofa ClientTrack™ Software as a Service (SaaS) subscription. Definitions: Active User: A named cnd~user ofa ClientTrack™ system that has current login privileges. An Active User account (seat) cannot be shared or used by more than one individual Active User but may be reassigned from time to time to new Active Users who arc replacing former Active Users who have terminated employment or otherwise changed job status or function and no longer use the Service. Inactive User: A named end-user ofa ClientTrack™ system that DOES NOT have current login privileges. An Inactive Users may be maintained in the system for historical and data integrity reasons. Term of Agreement: The term of this Agreement shall be in effect from the Effective Date stated above and run for twelve (12) consecutive months. The Customer may, at its discretion and with the consent ofDS1, renew the Agreement under all of the terms and conditions contained in this Agreement for subsequent additional one (I) year periods. The Customer shall give DSI written notice of the Customer's intention to extend the Agreement term not less than thirty (30) days prior to the end ofthe Agreement term then in effect. Grant of SaaS Subscription and Limited Use Software License: CUSTOMER must obtain from DSI a valid SaaS seat subscription sufficient for each Active User authorized to use the ClientTrack ™ Service. DSl hereby grants and CUSTOMER hereby accepts, a limited, non- exclusive license for Customer's Active Users to use the ClientTrack.Net™ software provided CUSTOMER complies with all terms and conditions of this agreement; including but not limited to, the Software as a Service (SaaS) Subscription Terms & Conditions a part of this Agreement as Exhibit A. DSI reserves the right to modify the Software as a Service (SaaS) Subscription Terms & Conditions terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon written notice as provided in this Agreement; any continued use of the Service after any such changes shall constitute your consent to such changes. This license shall immediately terminate and be null and void upon termination or upon Customer's violation of this Agreement. Price and Payment Terms: Customer agrees to make prompt payment to DSI upon receipt of a properly completed invoice. Customer shall bear all applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes), and similar charges, however designated or levied. DSI's pricing does not include charges. Payment will be made upon receipt ofa proper invoice and in compliance with Section 218.70, Fla. Stats.. otherwise known as the "Local Government Prompt Payment Act." Tax Exemption certificates, if applicable, must be presented prior to invoice if they are to be honored. DSI shall only bill the Customer for deliverables and services specifically stated in this agreement or otherwise approved in writing in advance by the Customer. The Customer shall pay DSI SaaS setup and subscription fees as specified in SaaS Pricing Table, part of this Agreement as Exhibit B. Monthly SaaS Subscription Fees are due and payable in advance on a quarterly basis; SaaS billing shall be deemed supported by documentation of SaaS active user count defined a.<; the greater of a) actual number of active users or b) the minimum number of user specified herein. Additional users may be added by the Customer as desired. Billing for Setup Fees and on a pro-rated basis SaaS Subscription Fees for additional users shall be added to the next quarterly billing based upon the time the user was created Requirement for Minimum Number of Active Users: During the initial term ofthi5 Agreement the minimum number of Active Users subscriptions required under this contract shall be no less than seventy-live (75) users. No RentallNo Commercial Hosting: You may not rent, lease, lend, or provide commercial hosting services with the Software. Software Ownership: The Software is owned by Data Systems International. The Software is licensed to CUSTOMER not sold. All rights not specifically granted in this Agreement, including Federal and International Copyrights, are reserved by Data Systems International. Software Limited Warranty: OSl warrants to CUSTOMER, that the software will operate substantially in accordance with its accompanying documentation for term of this Agreement. This warranty is void if failure of the software has resultcd from accident, abuse, or misapplication. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE IS PROVIDED "AS IS,"; DATA SYSTEMS INTERNATIONAL DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE AND DOCUMENT A TION. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS; YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. Limitation of Liability: NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, DSI SHALL IN NO EVENT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY OR OTHER LEGAL, CONTRACTUAL OR EQUITABLE THEORY FOR: (i) ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii) DAMAGES FOR LOST PROFITS OR LOST DATA; OR (iii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, Non-Payment and Suspension: In addition to any other rights granted to DSI herein, DSI reserves the right to suspend or terminate this Agreement and Customer's access to the Service if Customer's account becomes delinquent (falls into ~ arrears). Delinquent in' SiB6S (a6681Hl.ts in aR'eafs) are sl:lBjeet te interest 'X Bf l.go~ J3er meRtA. 88 Eln) 81:ltst8:fl.aing ealaRee. aT the ma,:iffi1:lffi j36fffiitlea B) 18 , RieRs' aT is less, flUB all 811j38nses efeel1eeti8R. You will continue to be charged for Active Users during any period of suspension. If Customer or DSI initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer's account. DSJ reserves the right to impose a reconncction fee in thc event you are suspended and thereafter request access to the Service. You agree and acknowledge that DST has no obligation to retain Customer Oata or Configuration ANO Customer Data and Configuration may be irretrievably deleted if Customer's account is 90 days or more delinquent. Termination Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current term, by notifying the other party in writing at least thirty (30) business days prior to the date of the invoice for the following term. In the event this Agreement is terminated (other than by reason of your breach), OSI will make available to Customer a file of the Customer Data within 30 days of termination if Customer so requests at the lime oftcrmination. Customer agrees and acknowledges that OSI has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination. Any breach of your payment obligations or unauthorized use of the Service will be deemed a material breach oflhis Agreement. DSI in its sole discretion may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In any dispute arising out of DSl's duties and obligations under this Agreement, OSI and Customer shall take all reasonable steps to resolve such disputes prior to the initiation of formal action. Such steps shall include. but are not limited to, clear notification by either party to the other of any perceived failure to perform under this agrcement and a reasonable time period of not less than Thirty (30) days, for cure. In the event a mutually acceptable resolution cannot be reached, either party may terminate this Agreement by providing Thirty (30) days written notice to the other at the party's last known address. In the event that any dispute shall require arbitration or other legal proceedings between the parties regarding this Agreement each party agrees to bear its own cost. General This Agreement and the Parties here to agree and consent that this Agreement shall be governed by the internal laws of the State of Utah, without giving effect to principles of conflict of laws and the exclusive jurisdiction and venue of the state courts sitting in Salt Lake County, Utah or the federal courts in the District of Utah to resolve any disputes arising under this Agreemcnt. In each case this software license and Agreement shall be construed and enforced without regard to the United Nations Convention on thc International Sale of Goods. This Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. The failure or delay of OS I lo exercise any of its rights under this Agreement or upon any breach of lhis Agreement shall not be deemed a waiver of those rights or of the breach. No Dsr dealer, agent or employee is authorized to make any amendment to this Agreement unless such amendment is in writing and signed by a duly authorized representative of DS!. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. OS I, ClientTrack.Netnf and other tradcmarks contained in the Software are trademarks or registered trademarks of Data Systems International in the United States and/or other countries. Affi]iate User may not remove or alter any trademark. trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This Agreement does not authorize you to use OSI or its licensors' names or any of their respective trademarks. IN WITNESS WHEREOF, the authorized representatives of the parties have executed this agreement 011 the day and year written below: Executed this ~ day of 141",; ~~~ Collier countY~d of county Canmissioners Customer SIgnature -f'L..L w c+ ,20~ Print Name: Carl Champagne C...,.f e./"~ ~(f"'l-'-e.- Title: Chief Executive Officer ~ ~ ~~l lSUffiClenC) CountJ AttorneJ uepA-../ Print Name: Fred W. Coyle Title: ChaiI1llall " ,. .',1_. '~ ~~ST:~~l;d~ At~st .to.bl.I,.....t. .1Qnatu"',,;':'~ ~,;r\:,\;~,,":'\; Exhibit A Software as a Service (SaaS) Subscription Terms & Conditions This Software as a Service Agreement ("Agreement") is made as ofthc Order Dale of the service, by and between DataSystcms International Incorporated, a Utah Corporation, ("D8I"), and the ordering party ("CUSTOMER"). Services OSI will provide, subject ({) the tenns herein. the CUSTOMER with a non-exclusive license to use of the application server, sotlware set and the support services set forth in this Agreement (collectively. the "Services"), solely fOT the purpose of access and execution of Customer's subscription to the ClientTrack™ software application ("ClientTrack") delivered as Software as a Service over the Internet. DS! alone (and its licensors, where applicable) own all right, title and interest, including all rclated Intellectual Property Rights, in and to ClientTrackTM and associated products, technology, the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service. This Agreement is not a sale and does not convey to Customer any right~ of ownership in or related to the Service, the ClientTrackT~ or the Intellectual Property Rights owned by DS1. CUSTOMER will have access to the Services for the purpose of using the Services for its intended purpose and in accordance with the specifications set forth in any documentation relating to the Services provided by OS!. Such llse and access will be continuous on a 24 hour basis except for interruptions by reason of maintenance or downtime beyond Licensor's reasonable control. All standard features and functions ofClicntTrackTM Core-Package will be available to Customer as part of the monthly user fees. DSI will provide up to 2 Gigabytes (GB) of storage space on the application server for CUSTOMER to use for storage of data necessary for use of ClientTrack. If CUSTOMER 's use exceeds the base storage space allotted, CUSTOMER will be responsible to pay for additional data storage fee at DSI's prevailing rate; incremental fees will be calculated on the average monthly storage overage and invoiced quarterly. Databases smaller than I Gigabyte can be exported through the Application's "Export Whole Database" feature. The exportation of databases larger than 1 Gigabyte must be performed by Licensor's professional staff with Customer being charged for associated time and material. DSI wi\1 maintain ClientTrack during the term of this Agreement. In the event ClientTrack has been modified or customized, and DSI personnel performed those modifications, DSI agrees to maintain ClientTrack as modified. The cost of regular application maintenance (break/fix) is included in the Monthly User Fees. Software support beyond regular application maintenance may be billable to CUSTOMER at DST's prevailing Professional Services rates. OS! reserves the right to modify any Service from lime to time; provided that Customer may terminate a Service without penalty in the 30 days following notice from OS! of the implementation of any change to a Service that has a material adverse aftt.'Ct on the functionality of that Service, ifDST fails to correct the adverse effect in the 30 days following Customer's writtcn notification to DSJ of such enect. DSI. its aftiliates or subcontractors may perfonn some or all of DSl's duties and/or obligations hereunder. CUSTOMER Responsibilities CUSTOMER must obtain from OSI a valid SaaS seat licensing su fficient for the number of authorized usen; to use the ClientTrack Software. CUSTOMER will use the ClicntTrack only fl,)r its internal business operations and will not permit ClientTrack to be used by or for the benefit of anyone other than CUSTOMER. CUSTOMER will not have the right to re-license or sell rights to access and/or use the Licensed ClientTrack Application or to transfer or assign rights to access or use ClientTrack. except as expressly provided herein. CUSTOMER may not modity, translate, reverse engineer, decompile or create derivative works based upon Client Track. Customer agrees to use ClientTrack in a manner that complies with all applieablc laws including intellectual propeny and copyright Jaws. Licensor expressly reserves all rights not expressly granted to CUSTOMER herein. CUSTOMER shall not (i) license, sublicense, selL resell, transfer, assign. distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to thc Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (Iv) reverse enginecr or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, featurcs, functions or graphics of the Service, or (c) copy any ideas. features. functions or graphics of the Service CUSTOMER shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material. including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms. Trojan horses or other hannful computer code, files. scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its rclatcd systcms or nctworks. CUSTOMER ean add users at will; OST will monitor the CUSTOMER's database to verify number of users. CUSTOMER agrees to pay a onetime user setup fees and ongoing software subscription fees for each uscr added. Should the CUSTOMER add users above CUSTOMER's initial base subscription level, the new total number of users created within a calendar month replaces and becomes the CUSTOMER's base contractual user subscription and will be billed accordingly for the month added and for the remainder of the contract period. CUSTOMER will not: (i) transmit or share identification or password codes to persons other than authorized users (ii) permit thc identification or password codes to be cached in proxy servers and accessed by individuals who are not authorized users. or (iii) pcnnit access to the ClientTrack Application through a single identification or password code being made available to multiple users on a network. CUSTOMER will be responsible to provide. install. and maintain all workstations equipment and operating system and other software to establish and utilize a supported World Wide Web browser; as well CUSTOMER is responsible for establishing and maintaining an Internet connection necessary to access and use the Services. CUSTOMER is responsible for all costs and fces (including, but not limited to telephone service. or other telecommunications service, computers and modcms) associated with such providing user workstations and Internet services. DSI recommends a broadband Internet connection typically this is a minimum connection method/specd of a DSL lnternc! linc. DST does not recommend using a dial- up modem as an Internet connectivity method in the use or ClientTrack. SERVICES MAY BE SUBJECT TO LIMIT A TrONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMtNICA nONS. DSI IS ;-..jOT RESPONSIBLE FOR ANY DELAYS. DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. As part of the registration process for service, each CUSTOMER's user will be given a password. CUSTOMER will be responsible fl,)r maintaining thc confidentiality of any password used to access the service. CUSTOMER will be fully responsible for any and all activities that occur under CUSTOMER '8 account and passwords. Data Ownership; Confidentiality; Loss All data created or transmitted by CUSTOMER and stored on OSI servers as part ofthe Services shall at all times be owned by CUSTOMER. All data pertaining to CUSTOMER disclosed to DSJ in connection with the performance of this Agreement and residing on DSI's application server will bc held as confidential by DSI and will not, without the prior written consent of CUSTOMER. be disclosed or be used for any purposes other than the performance of this Agreement. DSI will safeguard the confidentiality of such data using the same standard of care that Dsr uses for its own confidential materials. This obligation does not apply to data that: (i) is or becomes. through no act or failure to act on thc part ofDSI. generally known or available; (ii) is known by OST at the time of receiving such information as evidenced by its written records; (iii) is hereafter furnished to DSI by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by OS! as evidenced by its written and dated records and without any breach ofthis Agreement; or (v) is the subject ofa written permission 10 disclose provided by CUSTOMER. Further notwithstanding the forgoing, disclosure of data will not be precluded ifsuch disclosure: (i) is in response to a valid order of a court or other governmental body of the United States; (ii) is otherwise required by law; or (iii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. CUSTOMER acknowledges thaI the ClientTrack and other data on DSI's application server embodies logic, design and coding methodology that constitute valuable confidential information that is proprietary to DS\. CUSTOMER will safeguard the right to access ClicntTrack and other applications installed on DS!'s application server using the same standard of care that CUSTOMER uses for its own confidential materials. DSI will perform a regular backup of Client Track data on its application servers, using the same standard of care that DSI uses for its own data, but DSI shall in no event be liable to Customer or any third party for loss, destruction or corruption of CUSTOMER Data. CUSTOMER agrees and acknowledges that it is in a better position to foresee and evaluate any potential damage or loss it may suffer in connection with loss of CUSTOMER Data and that the fees payable under this Agreement have been calculated on the basis that Dsr shall exclude liability as provided in this Section. DSI specifically recommends thaI CUSTOMER make use of the ClientTrack Application's "Export Whole Database" feature to ensure that the CUSTOMER maintains a viable copy of CUSTOMER's data to meet CUSTOMER's Disaster Recovery / Business Continuity requirements. Service Levels Except as otherwise provided herein, OSI will use commercially reasonable efforts to make the Services available in accordance with prevailing Software as a Service / Application Service Provider industry standards, taking into account the CUSTOMER's workstations and the speed of their Internet connection to access and use the Services. OS! will use commercially reasonable efforts under the circumstances to remedy any interruptions. omissions, mistakes, accidents or errors in the Services (hereinafter "Defects") and substantially restore the Services to conform to specifications included in the current CustomerlDSI contract documents and current ClientTrack documentation. If the Services fail to substantially confonn to specifications included in the current Customer contract documents and current ClientTraek documentation over a continuous period of thirty (30) days after written notice to DSI of such nonconformity. CUSTOMER may terminate Services, provided that the Defect is not caused or contributed to, directly or indirectly, by any act or omission ofClJSTOMER or its customers, affiliates, agents, representatives, or invitees, other than nonnal use of the Services. Technical Support. CUSTOMER acknowledges that, except as expressly provided in this Section, all support for the ClientTrack Software shall be provided as defined by DSI pursuant to current Customer/OSl contract documents and prevailing DSI business practice. Dsr shall provide support to CUSTOMER only with respect to access and availability of the ClientTrack Software maintained by DSI pursuant to this Agreement ("OSI Support"). DSI Support shall be available via telephone and email during the hours of 8:00 a.m. to 5;00 p.m., Mountain Time, Monday through Friday, excluding federal holidays. Support after the provided hours, may be provided by DSI at a rate twice DSI's prevailing professional services time and material rates, billed for each hour or fraction thereof. CUSTOMER acknowledges that issues outside the nomlal scope ofOsrs standard technical support may be billable to the CUSTOMER as professional services at DS!'s prevailing professional services time and material rates; however, OSI will not perfonn nor bill for such services without prior approval in writing by the CUSTOMER. Term and Tcnnination This Agreement commences on the first substantial use ofthe ClientTrack system by the CUSTOMER shall continue until the CUSTOMER tonnally terminates this ab'fccment under the terms herein or as provided in the current Customer/OS I contract. Disclaimer of Warranties, Limitation of Damages EXCEPT AS EXPRESSLY SET FORTH HEREIN OR AS PROVIDED IN THE CURRENT CUSTOMERfDSI CONTRACT, OSIMAKES NOWARRANTlES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE SERVICES IT IS PROVIDING. OSI cxercises no control over and accepts no responsibility tor the content of the information passing through the Services. DSI specifically denies any responsibility tl.)r the accuracy or quality of information obtained through the Services. Use of any infonnation obtained via the Services is at Customer's own risk. EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY OR ANY OF DSJ'S SUPPLIERS OR LICE\lSORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, INTERRUPTION OF BUSINESS. LOST PROFITS, LOST REVENUE, OR LOST DATA), NOR SHALL DSI'S SUPPLIERS OR LICENSORS BE LIABLE FOR DIRECT DAMAGES TO THE EXTENT PERMITTED BY APPLICABLE LAW. Customer agrees and acknowledges that it is in a hetter position to foresee and evaluate any potential damage or loss it may suffcr in connection with the Services and that the fees payable under this Agreement have been calculated on the basis that DSI shall cxclude liability as provided in this Section. Force Majeure OSI shall not be deemed to be in delault of any provision of this Agreement or be liable for any delay or failure in performance due to Force Majeure, which shall include without limitation acts of God, earthquake, weather conditions, labor disputes, changes in law, regulation or government policy. riots, war, fire, epidemics, acts or omissions of vendors or suppliers, equipment lailures, transportation difficulties, malicious or criminal acts oflhird parties, or other occurrences which are beyond DSl's reasonable control Exhibit B Pricing Exhibit B -- SaaS Pricin Table Descri . on Setup Fees These amounts are billed and a able as additional users or a encies are added One Time per User Setup Fcc 0 One Time per Agency Setup Fee 0 Total Setu Fees Monthly SaaS Subscription Fees These amounts are billed and payable quarterly in advance Monthl SaaS User Scat Subscri tion Rate 150.00 NA 150.00 NA NA Monthly Each Quarter Annual Rate** Billin ~YR1 Cost $ 38.50 $ 8,662.50 $ 34,650 E h"b"t B P f IS P" T bl XI I - ro esslona eNlces ncmg a e Descriotion These amounts are billed and payable as Ouantitv invoiced. Rate Hourly Rate -Time and Materials $ 150.00 After Hours Rate $ 300.00