HomeMy WebLinkAboutC2009-380 - 9/4/2009 - NAT~acke~
A DIVISION OF C2, LLC
This Agreement ("Agreement") is entered into and effective as of:
September 1, 2009 ("Effective Date")
by and between Tracker, a division of C2, LLC, ("Tracker") a
North Carolina Corporation, having its principal place of business at 5DI
Northwest Drive, Davidson, NC 28D36; and
CITY OF CORPUS CHRISTI ("Customer")
1201 LEOPARD STREET
CORPUS CHRISTI, TX 78401
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
Definitions,
"Customer Data" means all electronic data or information
submitted 6y Customer to the Service.
"Service" means the online, web-based portfolio accounting
management service provided by Tracker via http://www.tracker.us.com
and/ar other designated websites.
"Users" means Customer's employees who are authorized to use the
Service and have been supplied user identifications and passwords by
Customer (or by Tracker at Customer's request).
2. Service.
2.1 Provision of Service. Tracker shall make the Service
available to Customer pursuant to the terms and conditions set forth in
this Agreement. During the term of this Agreement, the functionality of the
Service will not be materially decreased from that available as of the
Effective Date.
2.2 Users, User subscription is far named Users and may be
reassigned from time to time to new Dsers replacing farmer Dsers who
have terminated employment or other prior relationship with Customer,
changed jab status or function, or otherwise no longer requires ongoing
use of the Service.
3,0 Use of the Service.
3,1 Tracker Responsibilities. Tracker shall: (i) not use,
edit ar disclose to any party other than Customer the Customer Data; (ii)
maintain the security and integrity of the Service and the Customer Data;
(iii) provide telephone and online standard support to Customer's Users, at
no additional charge, (iv) use commercially reasonable efforts to make the
2009-380
09/04/09
............................................................................................................................
TRACKER SUBSCRIPTION AGREEMENT
Service generally available 24 hours a day, 7 days a week, except for:
downtime caused by circumstances beyond Tracker's reasonable control,
including acts of God, acts of government, flood fire, earthquakes, civil
unrest, acts of terror, strikes ar other labor problems not involving
Tracker employees, computer or telecommunications failures or delays
involving hardware or software not within Tracker's possession or
reasonable control, and network intrusions or denial of service attacks,
but only to the extent unavailability results notwithstanding the exercise by
Tracker of reasonable care and due diligence to avoid or mitigate the same
in anticipation of or in response to such causes.,
3.2 Customer Responsibilities. Customer is
responsible for all activities that occur under Customer account.
Customer shall: (i) have sale responsibility far the accuracy, quality,
integrity, legality, reliability, and appropriateness afall Customer Data;
(ii) use commercially reasonable efforts to prevent unauthorized access
to, or use of, the Service, and notify Tracker promptly of any such
unauthorized use; and (iii) comply with all applicable local, state, and
federal laws in using the Service.
3,3 Use Guidelines. Customer shall use the Service
solely for its internal business purposes as contemplated by this
Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease,
transfer, assign, distribute, time share ar otherwise commercially
exploit or make the Service available to any third party (ii) interfere
with or disrupt the integrity ar performance of the Service or the data
contained therein; or (iii) attempt to gain unauthorized access to the
Service or its related systems or networks.
3.4 Third-Party Providers, Certain third-party
providers, some of which may be listed on pages within Tracker's
website, offer products and services related to the Service, including
implementation, customization and other consulting services related to
customers' use of the Service and applications that work in conjunction
with the Service. Tracker does not warrant any such third-party
providers or any of their products or services. Any exchange of data or
other interaction between Customer and athird-party provider, and any
purchase by Customer of any product or service offered by such third-
party provider, is solely between Customer and such third-party
provider.
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Tracker
T~acke~
A DIVISION OF C2, LLC
4.0 Fees, Invoicing & Payment.
4,1 Fees, Tracker will provide the above services to the
CITY OF CORPUS CHRISTI for:
Annual Subscription Fee: $ P,34D.OD annually;195.DD per month
far three (3) Users.
Additional User(s): $ 95.OO per month.
Additional Tracker Modules:
Charts & Graphs: $ 6DD.D0 annually; NDT ACTIVATED
Economic Indicators: $ 3DD.OD annually; NDT ACTIVATED
Automatic Market Pricing: $ 600.00 annually; NOT ACTIVATED
Portfolio Set Up and Training Fee: Subject to the execution of this
document, a one time fee in the amount of $ 795.DD.
4.2 Invoicing & Payment, Fees for the Service will be
invoiced annually in advance; charges are due net 10 days from the invoice
date.
4,3 Suspension of Service. If Customer's account is 30
days or more overdue, Tracker reserves the right to suspend the Service
provided to Customer, without liability to Customer, until such amounts are
paid in full.
5.0 Proprietary Rights.
5.f Reservation of Rights, Customer acknowledges that in
providing the Service, Tracker utilizes (i) the Tracker name, the Tracker
logo, the Tracker domain name, the product and service names associated
with the Service, and other trademarks and service marks; (ii) certain
audio and visual information, documents, software and other works of
authorship; and (iii) other technology, software, hardware, products,
processes, algorithms, user interfaces, know-how and other trade secrets,
techniques, designs, inventions and other tangible or intangible technical
material or information (collectively, "Tracker Technology")and that the
Tracker Technology is covered by intellectual property rights owned or
licensed by Tracker (collectively, "Tracker IP Rights'). Other than as
expressly set forth in this Agreement, no license ar other rights in ar to
the Tracker Technology or Tracker IP Rights are granted to Customer, and
all such licenses and rights are hereby expressly reserved.
5,2 License Grant. Tracker grants Customer and its Users
a non-exclusive, non-transferable, non-sublicense able right to access and
use the Service in accordance with the terms of this Agreement.
TRACKER SUBSCRIPTION AGREEMENT
5.3 Restrictions. Customer shall not (i) modify, copy or
create derivative works based on the Service or Tracker Technology;
(ii) create Internet "links" to or from the Service, or "frame" or
"mirror" any content forming part of the Service.; or (iii) disassemble,
reverse engineer, or decompile the Service or Tracker Technology, or
access it in order to (A) build a competitive product or service, (B) build
a product or service using similar ideas, features, functions or graphics
of the Service, or (C) copy any ideas, features, functions or graphics of
the Service.
5.4 Customer Data. As between Tracker and Customer, all
Customer Data is owned exclusively by Customer.
5.5 Suggestions, Tracker shall have aroyalty-free,
worldwide, perpetual license to use ar incorporate into the Service any
suggestions, ideas, enhancement requests, feedback, recommendations
or other information provided by Customer or its Users relating to the
operation of the Seruice.
6,0 Warranties & Disclaimers,
b, l Warranties. Each party represents and warrants that it
has the legal power to enter into this Agreement. Tracker represents
and warrants that (i) it will provide the Service in a manner consistent
with general industry standards reasonably applicable to the provision
thereof; (ii) it owns or otherwise has sufficient rights to the Service and
the Tracker Technology to grant the rights and licenses granted herein;
and (iii) the Service and Tracker Technology do not infringe any
intellectual property rights of any third party.
6.2 Disclaimer. TRACKER MAKES ND WARRANTY DF ANY KIND,
IMPLIED, STATUTORY, DR OTHERWISE. TRACKER HEREBY SPECIFICALLY
DISCLAIMS All IMPLIED WARRANTIES TO THE MAXIMUM EXTENT PERMITTED
6Y APPLICABLE LAW.
7. Indemnification,
7.1 Indemnification by Tracker. Subject to this
Agreement, Tracker shall defend, indemnify and hold Customer
harmless against any loss or damage (including reasonable attorneys'
fees) incurred in connection with claims, demands, suits, or proceedings
("Claims') made or brought against Customer by a third party alleging
that the use of the Service as contemplated hereunder infringes the
intellectual property rights of a third party; provided, that Customer (a)
promptly gives written notice of the Claim to Tracker; (b) gives Tracker
sale control of the defense and settlement of the Claim (provided that
Tracker may not settle or defend any Claim unless it unconditionally
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Tracker
......................................................................................................
A DIVISION OF C2, LLC
releases Customer of all liability); and (c) provides to Tracker, at
Tracker's cost, all reasonable assistance.
8. Limitation of Liability,
8.1 Exclusion of Consequential and Related
Damages. IN ND EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TD
THE OTHER PARTY FOR ANY LOST PROFITS, LOSS DF USE, COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEDUENTIAL DAMAGES HOWEVER
CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY
OF LIABILITY, WHETHER OR NOT THE PARTY HAS 6EEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
8,2 Limitation of Action, Except for actions for non-
payment or breach of either party's intellectual property rights, no action
(regardless of farm) arising out of this Agreement may be commenced by
either party more than two (2) years after the cause of action has
accrued.
9.0 Term & Termination.
9,1 Term of User Subscription. This Subscription
commences on the Effective Date and continues until terminated by either
party. User subscriptions shall automatically renew for additional periods
of one (1) year at the price in effect at the time of renewal unless
Customer gives Tracker notice of termination at least 30 days prior to the
end of the relevant subscription term.
9.2 Termination. Either party may terminate this Agreement
at any time upon 30 days written notice Upan termination Tracker shall
refund to Customer any prepaid fees within seven [7] business days.
9,3 Outstanding Fees. Termination shall not relieve
Customer of the obligation to pay any fees accrued or payable to Tracker
prior to the effective date of termination.
10. General Provisions,
10,1 Relationship of the Parties. This Agreement does
not create a partnership, franchise, joint venture, agency, fiduciary, or
employment relationship between the parties.
10,2 Notices. All notices under this Agreement shall be in
writing and shall be delivered to the addresses notified by the parties to
each other
As~'l7~STb ___`~'
Af#141At~i)0 CHAP. .
CITY SEt~i~TAd4"
TRACKER SUBSCRIPTION AGREEMENT
10.3 Severability. If any provision of this Agreement is held by
a court of competent jurisdiction to be contrary to law, the provision
shall be modified by the court and interpreted so as best to accomplish
the objectives of the original provision to the fullest extent permitted by
law, and the remaining provisions of this Agreement shall remain in
effect.
10,4 Assignment. Neither party may assign any of its rights
or obligations hereunder, whether by operation of law or otherwise,
without the prior express written consent of the other party.
Notwithstanding the foregoing either party may assign this Agreement
together with all rights and obligations hereunder, without consent of
the other party, in connection with a merger, acquisition, corporate
reorganization, or sale of all or substantially all of its assets not
involving a direct competitor of the other party.
10.5 Governing Law, This Agreement shall be governed
exclusively by, and construed exclusively in accordance with, the laws of
the United States and the State of Texas, without regard to its conflicts
of laws provisions.
IN WITNESS WHEREOF, the parties' authorized
signatories have duly executed this Agreement as
of the Effective Date:
TRACKER, a division of C2, LLC
Name; J. David Silvas
Title: President ~ Q
Signature: ~~~ ~ " ~ '""'
Date: September 1, 2009
CITY OF CnORPUS CHRISTI
Name: A--'1~-c ( ~ . ESGo~ly
Title: ~ ~~ ~ ' - 1 ~ ~ G' ~ ~
Signature:
Date:
~~ ~~
Approved as to form: 9.~,~ S
~~-~h
Lisa Aguila
Assistant Attorney
For City Attorney
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