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HomeMy WebLinkAboutE COMPLIANCE 1 -2003N-2003-051 eCompliance Services Agreement tis S ' CA 94103. a p ., , co, California Corporation (hereinafter "e Compliance"), and the City of Santa Aha, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City" or "Client"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of providing databases for the exchange of environmental compliance documents. B. e Compliance represents that it is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, e Compliance represents that it is knowledgeable in its field and that any services performed by e Compliance under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. DEFINITIONS 1.1 The "Agreement" refers to this Services Agreement. 1.2 The "Service" or "Services" refers to any service as described in this Agreement, as revised from time to time by the parties in writing. 1.3 The "Effective Date" as used herein, means the date whereby this Agreement is entered into. 1.4 "EEE" shall be defined as the system that incorporates the entire Electronic Environmental Exchange process module constituting the "product" of this agreement. 1.5 A "Subscriber" is defined as an individual designated by the client to access and use EEE. 2. SERVICES eCompliance shall make available EEE to Client by means of an Internet connection and shall make it available for access by the Client at any time. EEE allows Client to manage the creation, completion, authentication and submittal of electronic forms, as described more fully in Attachment A. If so indicated in Attachment A, eCompliance may also provide Client with software, hardware and consulting services for the integration of existing Client data and networking resources into EEE. 3. PROPRIETARY RIGHTS Client acknowledges and agrees that to the best of its knowledge all content and materials available through EEE are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. Except as expressly authorized by eCompliance, Client agrees not to sell, license, rent, modify, distribute, copy, reproduce, adapt, edit, or create derivative works from such materials or content. Notwithstanding the above, Client may print or download the materials or content contained in EEE, provided all copyright and other proprietary notices are kept intact. Client may provide public access to its forms on the EEE via a hyperlink on the Client's web site. Client may systematically retrieve data or other content to create or compile, directly or indirectly, a collection, compilation, database or directory of data contained in EEE. The data retrieved from the EEE may be incolporated into Client's existing databases. 4. TERM The initial term of the Agreement shall be for one (1) subscription to the EEE for one (1) year from the Effective Date, and shall extend thereafter for successive one (1) year terms and shall remain in effect until terminated in accordance with the Termination provisions of this Agreement. 5. TERMiNATION This Agreement may be terminated: (i) by Client, at any time, without cause, by giving eCompliance 30 days prior written notice; (ii) by eCompliance, at any time, upon 30 days prior written notice if Client breaches any material provision of this Agreement and has not cured same by the end of the 30 days; (iii) by eCompliance, at any time, upon 10 days written notice, if Client is in violation of any terms or conditions of the Usage Policy. 6. FEES AND PAYMENT In consideration of Clients willingness to utilize e Compliances program, e Compliance agrees to provide the services described in this Agreement shall be at no cost to Client. All taxes, fees and governmental charges relating to the Services provided hereunder (other than income taxes of eCompliance) shall be paid by Client. 7. LIABILITY DISCLAIMER The information, software, products, and services included in or available through EEE may include inaccuracies or typographical errors. Changes are periodically added to the information herein, eCompliance and/or its respective suppliers may make improvements and/or changes to EEE at any time. eCompliance and/or its respective suppliers make no representations about the suitability, reliability, availability, timeliness, and accuracy of the information, software, products, services and related graphics contained in EEE for any purpose. All such information, software, products, services and related graphics are provided "as is" without warranty of any kind. eCompliance and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, software, products, services and related graphics, including all implied warranties and conditions of memhantability, fitness for a particular purpose, title and non-infringement. In no event shall eCompliance and/or its suppliers be liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the EEE, with the delay or inability to use EEE or related services, the provision of or failure to provide services, or for any information, software, products, services and related graphics obtained through EEE, or otherwise arising out of the use of EEE, whether based on contract, tort, negligence, strict liability or otherwise, even if eCompliance or any of its suppliers has been advised of the possibility of damages. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply. If you are dissatisfied with any portion of EEE, or with any of these terms of use, your sole and exclusive remedy is to discontinue using EEE. 8. iNDEMNIFICATION Each party hereto agrees to defend, indemnify, and hold harmless the other party and its subsidiaries and other affiliated companies as defined under the Securities Act of 1933, as amended, and their employees, contractors, officers, and directors from all liabilities, claims, and expenses, including attorney's fees, that arise from the indemnifying party's use or misuse of EEE. eCompliance and Client reserve the fight, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification hereunder, in which event the other party will cooperate in asserting any available defenses. 9. iNTERNATIONAL USE eCompliance makes no representation that materials in EEE are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this site from other locations do so on their own initiative and are responsible for compliance with local laws. 10. CHOICE OF LAW AND FORUM This Service Agreement shall be governed by and construed in accordance with the laws of California, excluding its conflicts of law rules. Client expressly agrees that the exclusive jurisdiction for any claim or action arising out of or relating to these Terms of Use or Client use of EEE shall be filed only in the state or federal courts located in the California, and Client further agrees and submits to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. 11. SEVERABILITY AND INTEGRATION Unless otherwise specified herein, this agreement constitutes the entire agreement between Client and eCompliance with respect to EEE and supersedes all prior or contemporaneous communications and proposals, whether oral, written, or electronic, if any part of this Service Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. 12. CONFIDENTIALITY (a) It is understood that during the course of this Agreement, eCompliance and its employees may be exposed to data and information which is confidential and proprietary to Client. All such data and information including, but not limited to, all data submitted via the EEE to the agency and data from the client's existing databases of constituent submittals (hereinafter "Client Confidential Information"), written or verbal, tangible or intangible, made available, disclosed or otherwise made known to eCompliance and its employees as a result of Services under this Agreement shall be treated as confidential and shall be the sole property of Client. (b) All information regarding eCompliance's pricing information or any information pertaining to aspects of eCompliance's business such as beta versions of future products and product and Company marketing material that are clearly marked as "DRAFT" or "CONFIDENTIAL" and which constitute either information not known by actual or potential competitors of eCompliance (hereinafter "eCompliance Confidential Information"), disclosed by eCompliance to Client in connection with this Agreement is proprietary, confidential information belonging to eCompliance. (c) For the purposes of Sections 12(c) and 12(d), Confidential Information shall mean both eCompliance Confidential Information and Client Confidential Information. Except to the extent expressly authorized by this A~eement or unless otherwise agreed in writing by the Parties, each party agrees that, for the term of this Agreement, it shall keep confidential and shall not publish or otherwise disclose and shall not use for any purpose other than as provided for in this Agreement any Confidential Information owned or controlled by the other party, except to the extent the receiving party can demonstrate by competent proof that such Confidential Information: (d) was already known to the receiving party, other than under an obligation of confidentiality, at the time of disclosure by the disclosing party; (e) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving party; (f) becmne generally available to the public or otherwise part of the public domain after its disclosure other than through an act or omission of the receiving party in breach of any obligation of confidentiality; or (g) was disclosed to the receiving party other than under an obligation of confidentiality to a third party, by a third party who had no obligation to the disclosing party not to disclose such information to others. (h) Each party may disclose Confidential Information belonging to the other party to its affiliates, employees, agents, consultants and sublicensees who have been advised of the confidential nature of such information and who agree to be bound by similar terms of confidentiality and non-use. In the event a party is required to make a disclosure of the other party's Confidential Information, it will, except where impracticable, give advance notice to the other party of such disclosure and use reasonable efforts to secure confidential treatment of such information. 13. DEBARMENT (a) eCompliance hereby represents, warrants and certifies that it has not been and will not during the term of the Agreement be debarred under 21 U.S.C. 335(a) or 21 U.S.C. 335(b). In the event that eCompliance becomes debarred under such taw, eCompliance agrees to notify Client immediately and address the issue as directed by Client. (b) eCompliance hereby represents, warrants and certifies that it has not and will not use in any capacity the services of any individual, corporation, partnership, or association which has been debarred under 21 U.S.C. 335(a) or 21 U.S.C. 335(b). In the event that eCompliance becomes aware of or receives notice of the debarment of any individual, corporation, partnership or association providing services to eCompliance which relate to the Services being provided under this Agreement, eCompliance agrees to notify Client immediately and address the issue as directed by Client. 14. INDEPENDENT CONTRACTOR eCompliance is an independent contractor engaged by Client to perform the Services in accordance with the provisions of this Agreement, and the relationship hereby created is specifically governed by, limited to, and subject to all of the terms and conditions contained in this Agreement. The parties further agree that Client does not have the authority to hire or fire employees of eCompliance, nor does Client determine the rate or method of pay of such employees. 15. NO USE OF NAMES eCompliance shall not have the right or authority to make any representation on behalf of Client, bind Client to others in any manner, or use Client's name or trademarks in any public disclosure, without Client's prior ~vritten permission. 1N WITNESS WHEREOF, the parties hereto have executed this agreement as of the date indicated below. ATTEST: ~ Clerk of the Council ~SAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Atto~ey By: ~r~.~. Michael Vigliotta Deputy City Attorney RECOMMENDED FOR APPROVAL: CONSULTANT Marc Martin Fire Chief (TITLE) ?£egid~'r~-[,' e fo~//btl ce ~ /nc. Employer ID # or Individual SS # ATTACHMENT A SERVICES: EEE Subscription Services EEE monthly subscription includes the following for each subscriber: Hyperlink Access to Electronic Forms Form Electronic Submittals Email Notification of Electronic Submittals Non-repudiated Form Transaction Monitoring Electronic Signing of Online Forms Form Authentication Fully Configured Server 8 hrs/day 5 days/week Customer Support Client Integration Services Hardware/Software Purchases Specification Details Consulting Services One time training of Client staff on the use of EEE Software Services None ATTACHMENT B Fee Schedule: Annual EEE Subscription Rate: Free for a single subscription Client Integration Services: Hardware/Software Purchases Consulting Services Software Services $0.00 na $0.00