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PW Software Services BuildingeyeBUILDINGEVE. INC. SOFTWARE AGREEMENT Buildingeye, Inc. 237 Kearny Street, #139 San Francisco, CA 94108 talla.smith@cityofsanrafael.org 111 Morphew Street, San Rafael, CA94901 SOFTWARE SERVICES The buildingeye platform is a proprietary set of hosted applications used to visualize Customers back office data In a mutually agreed format, making the data available to Customers' Officials, Staff and Citizens through any current browser. The back office data is housed within its Accela ERP system and made availabie to Buildingeye. The data Is presented on the basis of a pre-defined configuration with the Customer. In consideration of the Customer requirement to Integrate Software Services, Customer shall pay Buildingeye, Inc. a fee of USD3,OOO per module, billed when works commence or on the signing of this Software Agreement, whichever is earlier. In consideration of the Customer using the Software Services identified In Appendix B, Customer shall pay Buildingeye, Inc. a fee of USD9,OOO per module, billed annually In advance for the period of the Software Agreement, commencing on the Effective Date or on the provision of a module under Private Release, whichever Is earlier. Amendments to Software Services are provided at the rates set out In Appendix C. This Software Agreement is entered Into between Buildingeye, Inc. with its principal place of business at 237 Kearny Street, San Francisco and you, the entity Identified above ("Customer") as of the Effective Date, which includes and Incorporates the Buildlngeye Terms and Conditions as set out in Appendix A. By signing this Software Agreement, the Customer acknowledges that It has reviewed, and agrees to be legally bound by, the Buildlngeye Terms and Conditions, each party's acceptance Is conditional upon the other's acceptance of the terms to the exclusion of all other items. Signature: Printed Name: (In Full) Title: Date: ~ Jim Schutz City Manager t L '--I'1.--l 1. SOFTWARE SERVICES APPENDIX A Bulldingeve Terms and Conditions 1.1. Subject to the terms and conditions of these Buildlngeye Terms and Conditions (the "Agreement"), Buildlngeye will use commercially reasonable efforts to perform the software services (the "Software Services") identified In the applicable Software Agreement entered into by Buildingeye and Customer ("Software Agreement"). 1.2. Customer understands that Bulldlngeye's performance depends on Customer timely providing Bulldlngeye with a copy of the Customers Data in a format agreed either through an API, JSON or CSV format. In addition, Customer agrees to provide Bulldingeye with up to five years' data for each department, the structure of said data and any ancillary Information to enrich the data such as GIS shapefiles. In the event of data being available via an API, Customer will provide access to the data on a continuous basis; for CSV files, bulldlngeye will provide credentials and systems so that Customer can upload on at least a dally basis a predefined agreed structured file format. Buildingeye shall not be liable for any delays In performance under this Agreement resulting from Customer's failure to meet these obligations. 2. RESTRICTIONS AND RESPONSIBILITIES 2.1. This is a contract for access to the Software Services and Customer agrees not to, directly or indirectly; reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software Services, documentation or data related to the Software Services, except to the extent such a restriction is limited by applicable law; modify, translate, or create derivative works based on the Software Services; or copy, rent, lease, distribute, assign, sell, or otherwise commercially exploit, transfer, or encumber rights to the Software Services; or remove any proprietary notices. 2.2. Customer will use the Software Services only In compliance with all applicable laws and regulations (including, but not limited to, any export restrictions). 2.3. Customer shall be responsible for obtaining and maintaining any equipment and other services needed to connect to, access or otherwise use the Software Services and Customer shall also be responsible for (a) ensuring that such equipment Is compatible with the Software Services, (b) maintaining the security of such equipment, user accounts, passwords and flies, and (c) for all uses of Customer user accounts with or without Customer's knowledge or consent. 3. OWNERSHIP Buildingeye retains all right, title, and Interest in the Software Services and all intellectual property rights (including all past, present, and future rights associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights, trademark and trade name rights and similar rights, trade secret rights, patent rights, and any other proprietary rights in Intellectual property of every kind and nature) therein. 4. CONFIDENTIALITY Each Party (the "Receiving Party") agrees not to disclose (except as permitted herein) and Confidential Information of the other party (the "Disclosing Party") without the Disclosing Party's prior written consent. "Confidential Information" means all confidential business, technical, and financial information of the disclosing party that is marked as "Confldentlal" or an eqUivalent designation or Ihat ,hould re",onably be under,"ood to be ,onfidenlialolven Ihe nalure of Ihe Informalion 2 fY Version Control: Short Form 2017-11 APPENDIX A Buildingeve Terms and Conditions the circumstances surrounding the disclosure (including the terms of the applicable Software Agreement). Bulldingeye's Confidential Information includes, without limitation, the software underlying the Software Services and all documentation relating to the Software Services. "Confidential Information" does not include "Public Data", which is data that the Customer has previously released or would be required to release according to applicable federal, state, or local public records laws. The Receiving Party agrees: (i) to use and disclose the Confidential Information only in connection with this Agreement; and (II) to protect such Confidential Information using the measures that Receiving Party employs with respect to its own Confidential Information of a similar nature, but in no event with less than reasonable care. Notwithstanding the foregoing, Confidential Information does not include information that: (I) has become publicly known through no breach by the receiving party; (il) was rightfully received by the receiving party from a third party without restriction on use or disclosure; or (ill) is independently developed by the Receiving Party without access to such Confidential Information. Notwithstanding the above, the Receiving Party may disclose Confidential Information to the extent required by law or court order, provided that prior written notice of such required disclosure and an opportunity to oppose or limit disclosure is given to the Disclosing Party. 5. DATA LICENSE Customer grants Buildingeye a non-exclusive, transferable, perpetual, worldwide, royalty-free license to copy, modify, and make derivative works of any data or Information submitted by Customer to Buildingeye for the development of new software or the provision of the Software Services. 6. PAVMENTOF FEES The fees for the Software Services ("Fees") are set forth In the applicable Software Agreement. Customer shall pay all Fees within thirty (30) days from the date of each Buildingeye Invoice. Unpaid invoices may be subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Buildlngeye, Inc. shall Invoice the Agency at the anniversary of each calendar year for all annual fees covering the subsequent year. All payments will be made in US Dollars to the designated account noted on each Invoice. Agency shall pay the amounts due under each invoice without deducting any withholding amounts that may be applicable to such payments. Taxes. All Fees under this Agreement are exclusive of any applicable sales, valued added, use or other taxes ("Sales Taxes"). Customer is solely responsible for any and all Sales Taxes, not Including taxes based solely on Buildlngeye's net Income. If any Sales Taxes related to the Fees under this Agreement are found at any time to be payable, the amount may be billed by Buildlngeye to, and shall be paid by, Customer. If Customer falls to pay Sales Taxes, then Customer will be liable for any related penalties or Interest, and will Indemnify Bulldingeye for any liability or expense Incurred in connection with such Sales Taxes. On the anniversary of the term, unless otherwise agreed an Increase of 7% is applied to each renewal. 7. TERM & TERMINATION 7.1. Subject to compliance with all terms and conditions, the Initial term of this Agreement shall be from the Effective Date and shall continue for an initial term of twelve (12) months. At the end of the Initial term, this Agreement shall automatically renew for successive periods of twelve (12) months, unless either party gives the other party written notice of non-renewal at leastthirty (30) days prior to the renewal date (such renewal periods and the initial period, collectively the "Term"). The customer will be billed on an annual basis. If either party materially breaches any term of this Agreement and fails to cure such breach within thirty --------------~/ Version Control: Short Form 2017-11 V APPENDIX A Bulldingeye Terms and Conditions (3~) days after notice by the non-breaching party (ten (10) days in the case of non-payment), the non-breaching party may terminate the Agreement immediately upon notice. 7.2. Upon termination, Customer will pay in full for all Software Services performed up to and including the effective date of termination. Upon any termination of this Agreement: (a) all Software Services provided to Customer hereunder shall immediately terminate; and (b) each party shall return to the other party or, at the other party's option, destroy all Confidential information of the other in Its possession. 7.3. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. WARRANTY AND DISCLAIMER Buildingeye represents and warrants that: (i) it has all right and authority necessary to enter into and perform this Agreement; and (ii) the Software Services shall be performed in a professional and workmanlike manner in accordance with generally prevailing industry standards. Customer represents and warrants that (i) it has all right and authority necessary to enter Into and perform this Agreement; (ii) It owns all right, title, and interest in and to all data provided to Buildingeye for use in and In connection with this Agreement, or possesses the necessary authorization thereto; and (iii) Buildlngeye's use of such materials in connection with the Software Services will not violate the rights of any third party. BUILDINGEYE DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE UNINTERUPPTED OR ERROR FREE; NOR DOES IT MAI<E ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OFTHE SOFTWARE SERVICES, EXCEPT AS SET FORTH IN THIS SECTION 8, THE SOFTWARE SERVICES ARE PROVIDED "AS IS" AND BUILDINGEYE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LIMITATION OF LIABILITY NEITHER PARTY, NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPORESENTATIVES, CONTRACTORS AND EMPLOYEES, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MAnER OF THIS AGREEMENT OR RELATED TERMS AND CONDITIONS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY: (A) FOR ERROR OR INTERUPTION OF USE OR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERIVCES OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTIAL, SPECiAL, OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MAnER BEYOND SUCH PARTY'S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE, CUMLATIVE L1ABILTY FOR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO BUILDINGEYE (OR, IN THE CASE OF CUSTOMER, PAYABLE) FOR THE SOFTWARE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. MISCELLANEOUS Capitalized Items not otherwise defined In these Terms and Conditions have the meaning set forth in the applicable Software Agreement. Neither party shall be held responsible or liable for any losses arising out of any delay or failure in performance of any part of this Agreement, other than payment obligations, due to any act of God, act of Governmental Authority, or due to war, riot, labor difficulty, Version Control: Short Form 2017-11 APPENDIX A BuJldingeve Terms and Conditions failure of performance by any third party service, utilities, or equipment provider, or any other cause beyond reasonable control of the party delayed or prevented from performing . Buildlngeye shall have the right to use and display Customer's logos and trade names for marketing and promotional purposes in connection with Bulldingeye's online activities and marketing materials, subject to Customer's trademark usage guidelines (as provided to Bulldlngeye). If any provision of this Agreement Is found to be unenforceable or Invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain In full force and effect and enforceable. This Agreement Is not assignable or transferable by either party with the other party's prior written consent, provided however that either party may assign this Agreement to a successor to all or substantially all of Its business or assets . This Agreement (including the Software Agreement) Is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties. No agency, partnership, joint venture, or employment Is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees . All notices under this Agreement will be In writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, If transmitted by facsimile or email; the day after it is sent, If sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mall, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to Its conflict of laws provisions. Version Control: Short Form 2017-11 APPENDIX C -SERVICE CHARGES CUSTOMER CONTRACTOR City of San Rafael 111 Morphew Street San Rafael, CA 94901 Item Description A Annual license Fee for buildlngeye Standard Module -data extracted through Accela Construct API B Integration Fee for Module (initial setup) Buildingeye, Inc. 237 Kearny Street # 139 San Francisco, CA 94108 (650) 6562620 bUildingeye.com Qty Cost 1 $ 9,000 1 $ 3,000 Total $12,000 The charges above include an introductory discount as the City is procuring buildingeye directly and the fact that buildingeye is dealing with a single source of data and management control, on acceptance of our standard agreement. It is expected that historical data for 5 years will be integrated from Accela. Integration Is payable on signing of the contract. A Module Is invoiced when work commences for that module and shall be due 30 days following issuance. Restricted access to the Agency Is maintained whilst in private release. Buildlngeye, Inc. shall Invoice the Agency at the anniversary of each calendar year for all annual fees covering the subsequent year. All payments will be made In US Dollars to the designated account noted on each Invoice. Agency shall pay the amounts due under each Invoice without deducting any taxes that may be applicable to such payments. Agency Is responsible for paying any and all withholding, sales, valued added or other taxes, duties or charges applicable, other than taxes based on Buildingeye's income and taxable property. On the anniversary of the term, unless otherwise agreed an increase of 7% Is applied to each renewal. Additional Works Charges Amendments to Software Services -hourly rate $ 249.00 Amendments required or works undertaken post delivery of each buildlngeye standard module is subject to our hourly rate. All works are agreed in advance and performed following the Issuance of a Purchase Order. Please send Purchase Orders to accounts@buildlngeye.net Version Control: bulldlngeye -San Rafael-Service Charges -Appendix C 171027 -Valid for 30 days REF NUMBER: BEl71001 AGENCY: SAN RAF CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Public Works Project Manager: Talia Smith Extension: 3354 Contractor Name: Buildingeye, Inc. Contractor's Contact: Cia ran Gilsenan Contact's Email: ciaran@buildingeye.com o FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION DEPARTMENT 1 Project Manager a. Email PINS Introductory Notice to Contractor b. Email contract (in Word) & attachments to City Atty c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement and return to Project Manager b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Project Manager Forward three (3) originals of final agreement to contractor for their signature 4 Project Manager When necessary, * contractor-signed agreement agendized for Council approval *PSA > $20,000; or Purchase> $35,000; or Public Works Contract> $125,000 Date of Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed agreement 7 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts) 8 City Manager / Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager COMPLETED DATE C lick here to e nter a elat e. 10/27/2017 C lick here to e nter a elat e. Click here to enter a date. 12/8/2017 ~ N/A Or Click here to enter a date. \2./\1-/'f).. 1'2../1'.3/ n IZ/I:»r7 1l,-/~-17 f) ... (~. '7 REVIEWER Check/Initial 0 ~TS ~ LG 0 -- ~TS 0 ~~ ~ ~ ~frc- ~ ~J /