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<br />I <br /> <br />is not considered a "work for hire", XONOVIA agrees to assign and will assign and transfer, and <br />will cause its personnel, as defined below, to so assign and transfer to the City, all of its and their <br />rights in and to such Work Product. To the extend applicable, City hereby grants to XONOVIA <br />a nonexclusive, royalty free license to use the Work Product in performing services during the <br />term of this Agreement. Further, to the extent required by XONOVIA to perform the services, <br />City will be responsible for obtaining all required consents (including paying license, transfer or <br />upgrade fees) for XONOVIA and its personnel to access and use City's equipment and software, <br />including any leased equipment and third party software, during the term of this Agreement. If <br />XONOVIA is requested by City to provide any XONOVIA proprietary software or other work <br />product developed by XONOVIA either prior to or independent ofthis Agreement, the parties <br />will negotiate in good faith for a license for City to use such software or other work product. <br />Without limiting the foregoing, nothing contained in this Agreement shall be considered to <br />restrict XONOVIA from any use of any ideas, concepts, methodologies, processes, technologies <br />or other know-how relating to the Services hereunder which XONOVIA, individually or with <br />City, develops under this Agreement. <br /> <br />3. COMPENSATION <br /> <br />a. City agrees to pay, and XONOVIA agrees to accept as total payment for its services <br />pursuant to this Amendment, at the rate of $1 00.00 per hour. The total sum to be expended <br />pursuant to this First Amendment shall not exceed $48,000.00, for a total not to exceed amount <br />of $223,000.00 during the term ofthis Agreement. <br /> <br />b. Payment by City shall be made within thirty (30) days following receipt of proper <br />invoice evidencing work performed, subject to City accounting procedures. Payment need not <br />be made for work which fails to meet the standards of performance set forth in the Recitals <br />which may reasonably be expected by City. <br /> <br />4. TERM <br /> <br />This Agreement shall commence on the date first written above and terminate on June 30, <br />2008, unless terminated earlier in accordance with Section 13, below. The term of this <br />Agreement may be extended upon a writing executed by the Executive Director of Finance and <br />Management Services and the City Attorney. <br /> <br />5. INDEPENDENT CONTRACTOR <br /> <br />XONOVIA shall, during the entire term of this Agreement, be construed to be an <br />independent contractor and not an employee of the City. This Agreement is not intended nor <br />shall it be construed to create an employer-employee relationship, a joint venture relationship, or <br />to allow the City to exercise discretion or control over the professional manner in which <br />XONOVTA performs the services which are the subject matter of this Agreement; however, the <br />services to be provided by XONOVTA shall be provided in a manner consistent with all <br />applicable standards and regulations governing such services. XONOVIA shall pay all salaries <br />and wages, employer's social security taxes, unemployment insurance and similar taxes relating to <br />employees and shall be responsible for all applicable withholding taxes. <br /> <br />2 <br />