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