HomeMy WebLinkAboutPW 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
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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
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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,
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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.
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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
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10/27/2017
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12/8/2017
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