HomeMy WebLinkAbout04-06-20 City Commission Packet Materials - C9. PSA with CrewSense for Police Scheduling Software Commission Memorandum
REPORT TO: Honorable Mayor and City Commission FROM: Dana McNeil, Police Captain Steve Crawford, Chief of Police
SUBJECT: Professional Services Agreement with CrewSense for police scheduling software. MEETING DATE: April 6th, 2020
AGENDA ITEM TYPE: Consent RECOMMENDATION: Authorize the Interim City Manager to sign the attached Professional Services Agreement with CrewSense.
BACKGROUND: The City recently terminated a contract with its scheduling software vendor after attempting to remedy numerous unsatisfactory software issues. It is necessary for the Bozeman Police
Department, as an emergency response agency with requirements to operate various shifts 24 hours a day 365 days a year, to acquire an alternative software solution that provides the department with timely notification of changes to scheduling, simplifies access and interpretation of the schedule, and provides capabilities to integrate with the City’s payroll system. In conjunction with the information technology department, the police department researched several alternative vendor
solutions in compliance with the City’s purchasing policy and determined CrewSense as being the best option for the City’s needs. UNRESOLVED ISSUES: None FISCAL EFFECTS: The subscription for the program is $7,120.00 a year for the 80 licenses required for all officers and administrative staff to use the system and is within departmental budget. ALTERNATIVES: As suggested by the City Commission.
Report compiled on: March 27, 2020 Attachments: Professional Services Agreement
CrewSense Contract
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered as of April 30, 2020 (“Effective Date”), by and
between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized
and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman,
Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as
“City,” and TargetSolutions Learning, LLC, d/b/a Vector Solutions (Target Solutions”), a Delaware
limited liability company, powered by CrewSense, LLC (“CrewSense”) and Halligan, Inc.
(“Halligan”) (collectively referred to herein as “TSL”) hereinafter referred to as “Contractor” and
collectively with the City the “Parties.”
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: City agrees to enter this Agreement with Contractor to provide the license
and perform for City the services described in the Scope of Services attached hereto as Exhibit B and
by this reference made a part hereof.
2. Term/Effective Date: The term of this Agreement shall commence on the Effective
Date and will remain in full force and effect for twelve (12) months (“Initial Term”). Upon expiration
of the Initial Term, this Agreement shall automatically renew for successive one (1) year periods
(each, a “Renewal Term”), unless notice is given by either party of its intent to terminate the
Agreement, at least sixty (60) days prior to the scheduled termination date, but in no case will the
Initial Term and any Renewal Term(s) exceed five (5) years. Upon expiration of the Initial or any
Renewal Term, access to the Services may remain active for thirty (30) days solely for purpose of
TSL’s record keeping (the “Expiration Period”). Any access to or usage of the Services following
the Expiration Period shall be deemed City’s renewal of the Agreement under the same terms and
conditions.
3. Scope of Services: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services, Exhibit B. For conflicts between this
Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs.
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4. Payment: City agrees to pay Contractor the amount specified in the Pricing Schedule
attached hereto as Exhibit A and by this reference made a part hereof. Any alteration or deviation
from the described services that involves additional costs above the Agreement amount will be
performed by Contractor after written request by the City, and will become an additional charge over
and above the amount listed Exhibit A. The City must agree in writing upon any additional charges.
5. Contractor’s Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules,
and regulations that in any manner may affect cost, progress or performance of the Scope of Services.
b. Contractor represents and warrants to City that it has the experience and ability to
perform the services required by this Agreement; that it will perform said services in a professional,
competent and timely manner and with diligence and skill; that it has the power to enter into and
perform this Agreement and grant the rights granted in it; and that its performance of this Agreement
shall not violate any federal, state and municipal laws. The City will not determine or exercise control
as to general procedures or formats necessary to have these services meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that Contractor
is an independent contractor for purposes of this Agreement and is not to be considered an employee
of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s
personnel policies handbook and may not be considered a City employee for workers’ compensation
or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in
any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers’ Compensation Act,
Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71,
MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of
Contractor’s business, except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for
workers’ compensation coverage by an insurer licensed and authorized to provide workers’
compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
In the event that, during the term of this Agreement, any labor problems or disputes of any
type arise or materialize which in turn cause any services to cease for any period of time, Contractor
specifically agrees to take immediate steps, at its own expense and without expectation of
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reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific
steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that
Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief
to the City so as to permit the services to continue at no additional cost to City.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes
7. Indemnity/Waiver of Claims/Insurance: For other than professional services
rendered, to the fullest extent permitted by law and subject to the limits in amount and types of
coverage contained in Contractor’s insurance policies identified in its Certificate of Insurance, a copy
of which is attached hereto for reference, Contractor agrees to release, defend, indemnify, and hold
harmless the City, its agents, representatives, employees, and officers (collectively referred to for
purposes of this Section as the City) from and against any and all claims, demands, actions, fees and
costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses,
expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or
damages of whatever kind or nature connected therewith and without limit and without regard to the
cause or causes thereof or the negligence of any party or parties that may be asserted against,
recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or
in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii)
any negligent, reckless, or intentional misconduct of any of the Contractor’s agents.
For the professional services rendered, to the fullest extent permitted by law and subject to the
limits in amount and types of coverage contained in Contractor’s insurance policies identified in its
Certificate of Insurance, a copy of which is attached hereto for reference,,, Contractor agrees to
indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses,
including reasonable defense attorney fees, to the extent caused by the negligence or willful
misconduct of the Contractor or Contractor’s agents or employees.
Contractor shall indemnify and hold City harmless from any and all claims, damages, losses
and expenses, including but limited to attorney fees, arising out of or resulting from any third-party
claim that the Services or any component thereof infringes or violates any intellectual property right
of any person.
Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations
of indemnity that would otherwise exist except to the extent of Contractor’s insurance coverage limits
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as stated above. The indemnification obligations of this Section must not be construed to negate,
abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise
exist as to such indemnitee(s).
Contractor’s indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against the Contractor
to assert its right to defense or indemnification under this Agreement or under the Contractor’s
applicable insurance policies required below the indemnitee shall be entitled to recover reasonable
costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court
of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was
obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof.
In the event of an action filed against City resulting from the City’s performance under this
Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City or its officers, agents
or employees, including the right of contribution for loss or damage to person or property arising
from, growing out of, or in any way connected with or incident to the performance of this Agreement
except “responsibility for his own fraud, for willful injury to the person or property of another, or for
violation of law, whether willful or negligent” as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Contractor shall at Contractor’s expense secure
insurance coverage through an insurance company or companies duly licensed and authorized to
conduct insurance business in Montana which insures the liabilities and obligations specifically
assumed by the Contractor in this Section.
Contractor shall furnish to the City an accompanying certificate of insurance and
accompanying endorsements in amounts not less than as follows:
• Workers’ Compensation – statutory;
• Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
• Automobile Liability - $1,000,000 property damage/bodily injury per accident; and
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• Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers,
agents, and employees, shall be endorsed as an additional or named insured on a primary non-
contributory basis on both the Commercial General and Automobile Liability policies. The insurance
and required endorsements must be in a form suitable to City and shall include no less than a thirty
(30) day notice of cancellation or non-renewal. The City must approve all insurance coverage and
endorsements prior to the Contractor commencing work. Contractor shall notify City within two (2)
business days of Contractor’s receipt of notice that any required insurance coverage will be terminated
or Contractor’s decision to terminate any required insurance coverage for any reason.
The City must approve all insurance coverage and endorsements prior to the Contractor
commencing work.
8. Termination for Contractor’s Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails
to perform any of its obligations under this Agreement, or otherwise breaches any terms or
conditions of this Agreement, the City may, by written notice, terminate this Agreement and
the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due
to Contractor’s Fault”). The City may then take over the work and complete it, either with its
own resources or by re-letting the contract to any other third party.
b. In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
c. Any termination provided for by this Section 8 shall be in addition to any other
remedies to which the City may be entitled under the law or at equity.
d. In the event of termination under this Section 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
e. In the event of termination under this Section 8 and upon City’s written request,
Contractor shall ensure that all City Data is transferred to City or a third party designated by
City securely, within a reasonable period of time, and without significant interruption in
service, in the format specified by City.
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9. INTENTIONALLY OMITTED
.
Limitation on Contractor’s Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor’s damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, without unreasonable delay following the facts and circumstances giving
rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive
all rights to assert such claim.
11. Representatives:
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be James Henderson, Human Resources Director or such other individual as
City shall designate in writing. Whenever approval or authorization from or communication
or submission to City is required by this Agreement, such communication or submission shall
be directed to the City’s Representative and approvals or authorizations shall be issued only
by such Representative; provided, however, that in exigent circumstances when City’s
Representative is not available, Contractor may direct its communication or submission to
other designated City personnel or agents as listed above and may receive approvals or
authorization from such persons.
b. Contractor’s Representative: The Contractor’s Representative for the
purpose of this Agreement shall be Steve Walsh, Regional Sales Manager_______
________ or such other individual as Contractor shall designate in writing. Whenever
direction to or communication with Contractor is required by this Agreement, such direction
or communication shall be directed to Contractor’s Representative; provided, however, that
in exigent circumstances when Contractor’s Representative is not available, City may direct
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its direction or communication to other designated Contractor personnel or agents.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman
business license, and inspections from applicable governmental authorities, and pay all fees and
charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers’
compensation laws, all environmental laws including, but not limited to, the generation and disposal
of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and
provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and
State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination,
affirmative action, and utilization of minority and small business statutes and regulations.
14. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons
performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have
a policy to provide equal employment opportunity in accordance with all applicable state and federal
anti-discrimination laws, regulations, and contracts. The Contractor 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. The Contractor shall be subject to and comply
with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all
regulations promulgated thereunder. The Contractor shall require these nondiscrimination terms of
its subcontractors providing services under this agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor
shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs,
by any employee or agent engaged in services to the City under this Agreement while on City property
or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of
and shall comply with its responsibilities and obligations under the U.S. Department of Transportation
(DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City
shall have the right to request proof of such compliance and Contractor shall be obligated to furnish
such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees
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and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing his employees and agents in safe work practices.
16. Modification and Assignability: This Agreement may not be enlarged, modified or
altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor’s rights, including the right to compensation or duties arising
hereunder, without the prior written consent of City. Any subcontractor or assignee will be bound by
all of the terms and conditions of this Agreement.
17. Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor’s compliance with the
requirements of this Agreement. Once per contract year and upon not less than ten (10) days prior
written notice, Contractor shall allow the City, its auditors, and other persons authorized by the City
to inspect and copy its books and records for the purpose of verifying that the reimbursement of
monies distributed to Contractor pursuant to this Agreement was used in compliance with this
Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not
issue any statements, releases or information for public dissemination without prior approval of the
City.
18. Non-Waiver: A waiver by either party any default or breach by the other party of any
terms or conditions of this Agreement does not limit the other party’s right to enforce such term or
conditions or to pursue any available legal or equitable rights in the event of any subsequent default
or breach.
19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to
retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice
required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable
attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City
Attorney.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
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personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator to assist
in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days or such
extended period time as may be mutually agreed upon by the parties, from the date the dispute
was first raised, then such dispute may only be resolved in a court of competent jurisdiction
in compliance with the Applicable Law provisions of this Agreement.
22. Survival: Contractor’s indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
23. Headings: The headings used in this Agreement are for convenience only and are not
be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to
which they refer.
24. Severability: If any portion of this Agreement is held to be void or unenforceable, the
balance thereof shall continue in effect.
25. Applicable Law: The parties agree that this Agreement is governed in all respects by
the laws of the State of Montana.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties other
than as set forth in this Agreement. All communications, either verbal or written, made prior to the
date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this
Agreement by reference.
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**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year
first above written.
CITY OF BOZEMAN, MONTANA CrewSense By VectorSolutions
CONTRACTOR (Type Name Above)
By________________________________ By__________________________________
Dennis Taylor, Interim City Manager
Print Name:
Print Title: ____________________________
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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Vice President of Sales
Phil Coons
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Exhibit A
Pricing Schedule
By signing the Client Agreement, you are 1) agreeing to the pricing and terms presented in the Agreement; 2) agreeing you have read and accept the Client Agreement and License Terms and; 3) agreeing you have read the TargetSolutions Platform System Requirements and Platform Solution Description documents listed in detail at the following URL:
https://www.targetsolutions.com/clients/client-resources/
Date: 02/28/2020 Pricing Valid for 30 days.
Client Information
Client Name: City of Bozeman Address: 121 North Rouse Avenue Bozeman, MT 59771
Primary Contact Name: Dana McNeil Primary Contact Phone: 4065622021
Invoicing Contact Information (Please fill in missing information)
Billing Contact Name: Accounts Payable
Billing Address: 30 North Rouse Avenue Bozeman, MT 59715
Billing Phone: 4065622021
Billing Email:
cklumb@bozeman.net PO#: Billing Frequency: Monthly
Payment Terms:
Net 30
Grand Total (including Implementation & Training): $7120.00
Please note that this is not an invoice and taxes are excluded. An invoice will be sent within fourteen (14) business days of your Contract Effective Date.
Annual Subscription Services
Product Description Quantity Unit Price Total
CrewSense SaaS Scheduling Platform 80 $89.00 $7120.00
Total: $7120.00
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Exhibit B
Scope of Services and License
1. Services. TSL shall provide the following services:
1.1. Access and Use. TSL will provide City a non-exclusive, non-transferable, revocable, limited license to remotely access
and use the software as a service (‘Services”) hereunder and, unless prohibited by law, will provide access to any person designated by City (“Users”).
1.2. Availability. TSL shall use commercially reasonable efforts to provide access to and use of the Services by Client’s Users twenty-four (24) hours a day, seven (7) days a week, subject to scheduled downtime for routine maintenance, emergency maintenance, system outages and other outages beyond TSL’s control.
1.3. Help Desk. TSL will assist Users as needed on issues relating to usage via Help Desk five (5) days per week at scheduled hours. 1.4. Upgrades and Updates. TSL may update or upgrade the Services at any time at its discretion. Without paying additional compensation, City will receive access to any general upgrades and updates to the Services licensed from TSL, which upgrades and/or updates TSL makes generally available to its other clients. All updates and upgrades to the Services are subject to the terms and conditions of this Agreement.
2. City’s Obligations.
2.1. Compliance. City shall be responsible for Users’ compliance with this Agreement and use commercially reasonable efforts to prevent unauthorized access to or use of the Services.
2.2. Identify Users. City shall (i) provide a listing of its designated/enrolled Users; (ii) cause each of its Users to complete a profile; (iii) maintain user database by adding and removing Users as appropriate; and (iv) when purchasing asset inventory management Services, identify stations, vehicles, drug safes, and other service specific details, as may be applicable.
2.3. Future Functionality. City agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any public comments regarding future functionality or features.
2.4 Incident Tracking Service and Incident Management System Specifically Excluded. TSL is not offering to provide, and the City is not purchasing “Incident Tracking Services” or “Incident Management System” under this Agreement and such Services are not available under the terms and conditions of this Agreement. Should the City subsequently request “Incident Tracking
Service” or “Incident Management System”, then such Services may only be added by mutual written amendment to this Agreement. Any order for such Services submitted via issuance of a City purchase order is hereby rejected and shall be of no force and effect absent a written agreement signed by both parties detailing the terms, conditions, and restrictions applicable
to the provision of such “Incident Tracking Service” and “Incident Management System”.
3. Fees and Payments.
3.1. Fees. City will pay for the Services in accordance with the fee schedule in Schedule A attached to this Agreement. Fees listed in Exhibit A shall be increased by 3% per year both during the term of the Agreement, as well as for any renewal terms. License fees do not include any shipping, duties, bank fees, sales, use, excise or similar taxes due. If TSL is required to pay any such amounts, City shall reimburse TSL in full.
3.2. Payments. All fees due under the Agreement must be paid in United States dollars. Such charges will be made in advance, according to the frequency stated in Exhibit A. TSL will invoice in advance, and such invoices are due net thirty (30) days from the invoice date. All fees collected under this Agreement are fully earned when due and nonrefundable when paid.
3.3. Suspension of Service for Overdue Payments. Any fees unpaid for more than ten (10) days past the due date shall bear interest at 1.5% per month. With fifteen (15) days prior written notice, TSL shall have the right, in addition to all other rights and remedies to which TSL may be entitled, to suspend City’s Users’ access to the Services until all overdue payments are paid in full.
4. Intellectual Property Rights.
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4.1. City acknowledges that TSL alone (and its licensors, where applicable) shall own all rights, title and interest in and to TSL’s software, website or technology, the course content, translations, compilations, partial copies, modifications, and updates, and the Services provided by TSL, as well as any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client, and the Agreement does not convey to City any rights of ownership to the same. The TSL name and logo are trademarks of TSL, and no right or license is granted to City to use them.
4.2. City recognizes that TSL regards the software it has developed to deliver the Services as its proprietary information and as confidential trade secrets of great value. City agrees not to provide or to otherwise make available in any form the software or Services, or any portion thereof, to any person other than Authorized Users of City without the prior written consent of TSL. City further agrees to treat the Services with at least the same degree of care with which City treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the Services.
4.3. Except as otherwise agreed in writing or to the extent necessary for City to use the Services in accordance with this Agreement, City shall not: (i) copy the course content in whole or in part; (ii) display, reproduce, create derivative works from, transmit, sell, distribute, rent, lease, sublicense, transfer or in any way exploit the course content or Services in whole or in part; (iii) embed the course content into other products; (iv) use any trademarks, service marks, domain names, logos, or other identifiers of TSL or any of its third party suppliers; or (v) reverse engineer, decompile, disassemble, or access the source code of any TSL software.
4.4. If City chooses to participate by uploading its information to its shared resource sections of TSL’s website, City hereby authorizes TSL to share any intellectual property owned by City (“User Generated Content”) that its Users upload to the shared resources section of TSL’s website with TSL’s third-party customers and users that are unrelated to City (“Other TSL
Customers”); provided that TSL must provide notice to City’s users during the upload process that such User Generated Content will be shared with such Other TSL Customers.
4.5 The parties agree that as between them, all rights including all intellectual property rights in and to City Data (defined as information uploaded by City in using the Services but not including content uploaded to Chity’s shared resource sections of
TSL’s website) shall remain the exclusive property of City. TSL shall have a limited, nonexclusive license to use City Data as provided in the Agreement solely for purposes of performing its obligations under the Agreement. This Agreement does not give a party any right, implied or otherwise, to the other’s data, content, or intellectual property, except as expressly stated in the Agreement.
5. Mutual Warranties and Disclaimer.
5.1. Mutual Representations & Warranties. Each party represents and warrants that it has full authority to enter into this Agreement and to fully perform its obligations hereunder.
5.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES IS WITH CITY. TSL DOES NOT
WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
5.3. WORKPLACE SAFETY IS YOUR RESPONSIBILITY. THAT DUTY CANNOT BE DELEGATED AND TSL ACCEPTS
NO DELEGATION OF THAT DUTY. TSL WILL ASSIST YOU BY PROVIDING SPECIFIC SERVICES FOR WHICH YOU
HAVE CONTRACTED.
6. Miscellaneous.
6.1. Limitation on Liability. Except as it relates to claims related to Section 4 (Intellectual Property Rights) of
this Agreement, (a) in no event shall either party be liable to the other, whether in contract, warranty, tort
(including negligence) or otherwise, for special, incidental, indirect or consequential damages (including lost
profits) arising out of or in connection with this Agreement; and (b) the total liability of either party for any and all damages, including, without limitation, direct damages, shall not exceed the amount of the total fees
due to, or already paid to, TSL for the preceding twelve (12) months.
6.1.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE
CLAIM, UNDER NO CIRCUMSTANCES SHALL TSL BE LIABLE TO CLIENT OR TO ANY OF CLIENT’S OFFICERS,
DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS,EMPLOYEES, CONTRACTORS, AGENTS, OR
REPRESENTATIVES; OR TO ANY THIRD PARTY FOR ANY CLAIM, CAUSE OF ACTION, DEMAND, LIABILITY,
DAMAGES, AWARDS, FINES, OR OTHERWISE, ARISING OUT OF OR RELATING TO PERSONAL INJURY, DEATH,
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OR OTHER HARM CAUSED FROM USE OF OR RELIANCE ON THE CONTENT OF THE COURSES. CLIENT, ITS
OFFICERS, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, AND REPRESENTATIVES RELY ON THE CONTENT OF THE COURSES AT THEIR OWN RISK.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES
SO, SOLELY TO THE EXTENT SUCH LAW APPLIES TO CLIENT, THE ABOVE LIMITATIONS AND EXCLUSIONS
MIGHT NOT APPLY TO CLIENT.
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