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HomeMy WebLinkAbout06-25-18 City Commission Packet Materials - C8. Agreement with Neptune Tech Group for Water Customer Software Package Commission Memorandum Report To: Honorable Mayor and City Commission From: Jessica Ahlstrom, Water Conservation Specialist Shawn Kohtz, Interim Director of Public Works Subject: Application Programming Interface License Agreement with Neptune Technology Group, Inc. to support the development of a web-based customer water use presentment tool Meeting Date: June 25, 2018 Agenda Item Type: Consent Item Recommendation: Authorize the City Manager, or her designee, to sign an Application Programming Interface (API) License Agreement with Neptune Technology Group, Inc., to support the development of a customized web-based water customer presentment and software package to alert City of Bozeman water customers of water leaks in real time and to reduce water use by providing easy access to individual water usage data in order to achieve the water conservation goals set forth in the Integrated Water Resources Plan (IWRP). This project will also provide key support for Water and Sewer Operations and Customer Service Representatives regarding alerting customers of leaks and high flows in real time. Background: The City of Bozeman entered into an agreement with Dropcountr, Inc. on April 16, 2018 for the development of a customer engagement tool to educate residential water customers about their individual water usage. In order to integrate real-time water meter data into the customer portal, an API License Agreement to provide Dropcountr, Inc. with secure access to water meter data is required. As a result, the City of Bozeman seeks approval to enter into an API license Agreement with Neptune Technology Group Inc. for the development of this tool. The Director of the City’s Information Technology Department has approved the security protocols outlined in this agreement. Alternatives: As suggested by the Commission. Fiscal Effects: There are no project costs for Year One and Two of the agreement. Total project costs to the Meter Software Subscription CIP fund (WC02) for Year Three of the agreement is $650.00. Attachments: API License Agreement with Exhibits. 73 API LICENSE AGREEMENT This API License Agreement (the “Agreement”) is made effective as of May ____, 2018, by and between Neptune Technology Group Inc. (“Neptune”) and the City of Bozeman (“Utility”). Whereas, Neptune has developed various proprietary computer software systems that are licensed to Neptune’s customers (the “Neptune Systems”) that are properly authorized by Neptune to use the Neptune Systems; and Whereas, City desires to have interface(s) (“Interface(s)”) between systems it has purchased or licensed from third parties and the Neptune Systems; and Whereas, Neptune has developed Application Programming Interfaces (“APIs”) relating to the Neptune Systems; Now, therefore, Neptune and City hereby make the following agreements with respect to licenses of the Licensed APIs according to the terms of this Agreement as follows: 1.License 1.1 For the sole purpose of creating Interface(s) between Neptune Systems and software or applications licensed by City from third parties, Neptune hereby grants to City a non-exclusive, non-transferable license to use the specific published Neptune APIs that are identified in Exhibit A to this Agreement, as it may be amended by mutual written agreement from time to time (the “Licensed APIs”). City agrees that this license is further limited to use by City for its internal use only and may not be used for any other purpose. Neptune expressly reserves all rights that are not granted by this license. 1.2 Neptune will provide to City Documentation related to the Licensed APIs, and Neptune grants City a non-exclusive, non-transferable license to use one copy of the Documentation solely in furtherance of the license granted in Section 1.1 of this Agreement. For purposes of this Agreement, “Documentation” means any user manuals, reference manuals, release, application and methodology notes, written utility programs and other materials in any form provided by Neptune for use with a Licensed API. 2.Fees. City will pay to Neptune, or Distributor, the fees (to include license fee and annual maintenance and support fee) set forth in Exhibit B to this Agreement, which is incorporated by this reference. All fees are due and payable within thirty (30) days after receipt of invoice by Utility. 3.Limitations on Rights of Use 3.1 City shall not use the Licensed API for any other purpose except as expressly authorized in this Agreement. Neptune reserves the right to make the Licensed APIs available to Utility only pursuant to use of a license key provided by Neptune (a “License Key”). City will not disclose the License Key to any third party, other than the third party listed in Exhibit A to this agreement, or permit any third party, other than the third party listed in Exhibit A to this agreement, to use the License Key or access the Licensed API via the License Key issued to Utility. 3.2 Software Code. Neptune will provide City the Licensed APIs in object code only. Neptune reserves the right to encrypt the Licensed API as it deems appropriate. City has no rights in the object code or source code of a Licensed API. City may not disassemble, decompile, reverse translate or apply any other procedure to a non-source code delivered Licensed API. 74 2 4. Rights to Licensed API(s) and Documentation 4.1 Neptune Ownership. Any rights in Licensed API(s) and the Documentation not expressly granted to City in this Agreement shall remain with Neptune and/or its Licensors. 4.2 Intellectual Property Rights Notices. City undertakes not to remove the copyright notice, trademarks and all other proprietary rights notices contained in and/or on the original of a Licensed API and/or the Documentation. In addition, City will reproduce all copyright notices, trademarks and all other proprietary rights notices contained in and/or on the original of a Licensed API and/or the Documentation, in and/or on all copies of a Licensed API and/or the Documentation which City produces. 5. Implementation Support, Upgrades/Enhancements 5.1 Neptune will provide implementation support for the implementation of the Licensed API as determined reasonably necessary by Neptune. 5.2 City acknowledges and agrees that Neptune may make changes to the Licensed APIs from time to time. Neptune will make commercially reasonable efforts to maintain backward compatibility of the Licensed APIs to attempt to provide backward compatibility, but makes no guarantees of backward compatibility and assumes no obligation to ensure backward compatibility. City acknowledges and agrees that Licensed APIs may not remain compatible with third party software or programs after changes to the Licensed APIs, changes to third party software or programs, or changes to Neptune Systems. 6. Confidentiality City will treat the Licensed API, the Documentation, and any other information disclosed to it by Neptune that Neptune identifies as confidential (“Confidential Information”) as strictly confidential and shall protect such from unauthorized publication, dissemination or use with at least the same degree of care that it uses to protect its own confidential information, but with no less than reasonable care. City will not use Confidential Information for purposes other than those necessary to achieve the purposes of this Agreement. With the exception of its employees and subcontractors with a need to know, City will not provide any third party access to the Confidential Information without Neptune’s prior written consent, except as required by law. City and Neptune acknowledge that they contemplate that Neptune and Utility’s third party software provider will enter into an agreement that contains similar restrictions on the disclosure and use of Confidential Information, and execution and delivery of that agreement by Neptune and Utility’s third party provider constitutes Neptune’s written consent with respect to disclosure of Confidential Information by Utilty to Utility’s third party provider. Employees and subcontractors must be bound by confidentiality obligations as provided for in this section. 7. Term 7.1 This Agreement shall come into effect on the Effective Date and provided that the annual maintenance fee is paid by Utility, will extend for an initial term of one (1) year from the Effective Date (the “Initial Term”), and will automatically renew for additional successive one (1) year periods (each a “Renewal Term”). Either party may terminate this Agreement without cause by giving thirty (30) days written notice at any time during the Initial Term or any Renewal Term. Neptune may terminate this Agreement upon ten (10) days prior written notice for the failure of Utilty to pay any amount due pursuant to this Agreement. 7.2 Upon termination of this Agreement, City shall immediately cease utilizing Licensed API(s) and Documentation and shall return to Neptune the Documentation in its possession, all copies thereof 75 3 and all Neptune Confidential Information which are in Utility's possession, and to confirm the return to Neptune in writing. 8.Warranties and Limitation of Liability 8.1 THE LICENSED API AND ALL OTHER MATERIALS PROVIDED BY NEPTUNE ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEPTUNE MAKES NO WARRANTY THAT (i) THE LICENSED API WILL MEET YOUR REQUIREMENTS, (ii) THE LICENSED API WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, AND/OR THAT (iii) ANY ERRORS IN THE API WILL BE CORRECTED. 8.2 NEPTUNE MAKES NO GUARANTEE OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE QUALITY OF ANY DATA PROVIDED VIA THE LICENSED API. CITY ACKNOWLEDGES AND AGREES THAT NEPTUNE HAS NO OBLIGATION TO PROCESS, REPROCESS, ALTER, OR OTHERWISE MANIPULATE ANY DATA PROVIDED VIA THE LICENSED API OR TO PERFORM ANY DATA PROCESSING OR DATA CLEANSING. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE API IS DONE AT UTILITY’S OWN DISCRETION AND RISK AND CITY IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR NETWORK THAT MAY RESULT FROM THE DOWNLOAD OF ANY SUCH MATERIAL. 8.3 NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF THE OTHER, INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS PROFITS, LOSS OF USE OR GOODWILL, OR LIABILITY OR INJURY TO THIRD PERSONS, WHETHER FORESEEABLE OR NOT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE EXTENT CAUSED BY NEGLIGENCE OR WILLFUL MISCONDUCT OF CITY, ITS AGENTS OR EMPLOYEES. 9.Indemnification Utility shall defend, indemnify, and hold harmless Neptune from, and pay any amount due on, any claim, action, or other proceeding brought against Neptune arising from or relating to the use of the Licensed API by Utility. 10.Export Controls City undertakes, notwithstanding any existing contractual limitations, to export neither a Licensed API nor technical data which it has received from Neptune nor any API directly resulting therefrom, unless this is permitted under the pertinent laws and provisions of the United States and the European Union and all necessary approvals have been duly obtained. 11.Miscellaneous 11.1 This Agreement will be governed by and construed in accordance with the laws of the United States and the State of Montana. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The parties hereby submit to the exclusive jurisdiction of, and waive any objections to the venue of the state and federal courts in and for Gallatin County, Montana in any litigation 76 4 arising from or relating to this Agreement or otherwise arising from or relating to the Licensed APIs. 11.2 Assignment. Neptune is entitled, with Utility’s prior written consent, which may not unreasonably be withheld, to make use of subcontractors for the carrying out of any installation, configuration, training, warranty or service. Neither party may assign any rights under this Agreement without the other party’s prior written consent, except for the collection of overdue payments and moneys owed. 11.3 Notices. Any notices of the parties concerning this Agreement are to be effected in writing or by Fax and are to be sent to the addresses below or to such new address which a party may, in the future, notify to the other in writing. Neptune Technology Group City of Bozeman 1600 Alabama Highway 229 121 N. Rouse Ave. Tallassee, AL 36078 Bozeman, MT 59771 Office: 800.645.1892 Office: 406 582-3203 11.4 No waiver. Failure by either Party to enforce a right will not be deemed a waiver of future enforcement of that right or other rights under this Agreement. 11.5 Entire Agreement. This Agreement, including Exhibit A, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties regarding such subject matter. The provisions of this Agreement can only be modified in writing. This also applies to any possible waiver of this written form requirement. 11.6 Severability. If a provision of this Agreement proves to be wholly or partially invalid or unenforceable, this shall not affect the validity of the remaining provisions of this Agreement. 11.7 Force majeure. Both parties to this Agreement will be exempted from the performance of their contractual obligations to the extent that this is rendered impossible by force majeure, in particular by strike or lockout, fire, flood, governmental action, delay or failure by suppliers, earthquake or other circumstances which are not within the responsibility of the party which is to perform. 11.8 Independent Contractor. Each party acknowledges and agree that they will at all times represent themselves as an independent contractor of the other. Cityand Neptune agree that neither is the legal representative nor agent of the other and City and Neptune agree that neither has the right or authority to make any warranties or promises or incur any obligations on behalf of the other. 11.9 Nondiscrimination. Neptune agrees that all hiring by Neptune of persons performing this Agreement shall be on the basis of merit and qualifications. Neptune will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti- discrimination laws, regulations, and contracts. Neptune will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. Neptune shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 77 5 City of Bozeman Signature: ______________________________________ Printed Name: ___________________________________ Title: ___________________________________________ Neptune Technology Group Inc. Signature: Printed Name: Chuck Brunson Title: VP of Marketing City of Bozeman Signature: ______________________________________ Printed Name: ___________________________________ Title: ___________________________________________ 78 6 EXHIBIT A Licensed APIs Required Web Services (APIs) to be determined based upon the specific needs of City of Bozeman and capabilities of 3rd Party Vendor, Dropcountr Inc. 79 7 EXHIBIT B Price List API License Fee and Annual Maintenance & Support. 13548-00X API License Fee $0.00 ($3,250 Waived) 13548-10X API Annual Maintenance & Support Year 1 - $0.00 ($650.00 Waived) Year 2 - $650.00 Year 3 - $650.00 80