HomeMy WebLinkAboutRES 15-187RESOLUTION NO. 15-187
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF BEAUMONT:
THAT the City Manager be and he is hereby authorized to execute all documents
necessary to enter into a Service Agreement between the City of Beaumont and
Geofeedia, Inc., of Indianapolis, Indiana, for increased access to computer resources.
The Service Agreement is substantially in the form attached hereto as Exhibit "A" and
made a part hereof for all purposes.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 15th day of
September, 2015.
- or Becky -
GEOFE EDIA SERVICE AGREEMENT
This Geofeedia Service Agreement (this "Agreement") governs Your use of the Services (as defined below)
provided by Geofeedia, Inc., a Delaware corporation ("Service Provider"). 72)e- Synafa�%cs fepres�nf awf»or%�.�+b�
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By executing an Order Form (as defined below) that references this Agreement, You agree to the terms of this
agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent
that You have the authority to bind such entity to these terms and conditions, in which case ' You" and "Your"
shall refer to such entity. If You do not have such authority, or if You do not agree with these terms and
conditions, You must not accept this Agreement or use the Services.
This Agreement, including any Order Forms entered into by the Parties hereunder, is made effective on the date that the
initial Order Form is executed by Service provider and You (the "Effective Date"). You and Service Provider may be
referred to herein individually as a "Party" and collectively as the "Parties" You and Service Provider agree to the .
foregoing and as follows:
1. Definitions.
1.1 "Authorized User(s)" means those users identified by name and type of user access on the Order Form
who will receive a User ID in order to access the SAAS Service online.
1.2 "Authorized Furpose(s)" means use of the SAAS Service to search for, organize, review and use the
Social Media Content for the benefit of Customer, and for any other purposes expressly identified on the Order
Form.
1.3 "Order Form" means an order form issued by Service Provider and executed by You and Service
Provider which sets forth the necessary information relating to the products and services You have the right to
receive and the fees payable to Service Provider, which may include, without limitation, (1) identification of any
Services other than the SAAS Service, (ii) minimum fees payable, (iii) the Social Media Content for the Services,
(iv) the Authorized Purposes for which You may access the Services (v) any additional types of Authorized Users,
(vi) the initial term for the Order Form and (vii) any provisions applicable to renewal terms.
1.4 "SAAS Service" means access and use of Service Provider's Geofeedia software platform via the
Internet, including but not limited to services capable of searching, retrieving, and storing Social Media Content on
behalf of Authorized Users.
1.5 "Services" means the SAAS Service, Support Services, training and associated services provided by
Service Provider to You under this Agreement. For the avoidance of doubt, Services does not include Social Media
Content.
1.6 "Social Media Content" means information obtained from the Internet by the SAAS Service based on
or related to searches, including but not limited to links, posts and excerpts, and data derived thereof, such as reports,
summaries, graphs and charts.
1.7 "Support Services" has the meaninj set forth in Section 4.
1.8 "Update" means any improvement, enhancement, modification and/or changes to the SAAS Service
offered or provided by Service Provider.
1.9 "User ID" means aunique user identification assigned to an Authorized User.
1.10 "Your Data" means all information, records, files, and data entered into, received, processed, or stored by
or for You and Authorized Users using the SAAS Service, including, without limitation, Registration Information (as
defined below).
EXHIBIT "A"
2. SAAS Service
2.1 Access. Service Provider grants to Your Authorized Users a nonexclusive, ,personal and nontransferable
right to access the SAAS Service during the term of this Agreement solely for the Authorized Purposes. Your use of the
SAAS Service is limited to the terms'of this Agreement and the parameters defined in the Order Form, including its
limits to the number of Authorized Users. As a condition to access, Customer and its Authorized Users agree to comply
with (i) the terns and conditions set forth in this Agreement; (ii) applicable laws and regulations; and (iii) the terms of
service of the platforms from which the Social Media Content originates.
2.2 Restrictions. You will not, in whole or in part, (a) copy the SAAS Service or distribute copies of the
SAAS Service to any third party; (b) modify, adapt, translate, reverse engineer,' make alterations, decompile,
disassemble or make derivative works based on the SAAS Service except as otherwise permitted by law; (c) rent, loan,
sub -license, lease, distribute or attempt to grant any lights to the SAAS Service to third parties; or (d) use the SAAS
Service to act as an application service provider or reseller of the SAAS Service to third parties, or to permit access to
the SAAS Service by any kind to any third party. Use of the SAAS Service is also subject to Service Provider's privacy
policy, available through its website, https./Igeofeedia.com/privaoy-policy.
2.3 Right to Suspend or Terminate the SAAS Services; No Content License. In general, the Service is
designed to store links to locations where Social Media Content is hosted on third -party websites that Service Provider
does not own or control. Service Provider does not guarantee that any specific Social Media Content will remain
available or accessible. Service Provider reserves the right to immediately suspend or terminate the affected SAAS
Service and/or to remove the Social Media Content from the SAAS Service, if required by the third -party platform from
which the Social Media Content was received or if Service Provider reasonably believes that the SAAS Service or the
Social Media Content is or is about to become non-compliant with any applicable law, regulation or policy, or is likely
.to become the subject of a Iawsuit or material dispute. However, Service Provider's action or inaction shall not be
deemed review or approval of such use of such Social Media Content. You acknowledge that, .depending upon Your
intended use, including copying and reproduction, of the Social Media Content, You may be required to obtain licenses
or permissions from the author or owner of the Social Media Content, abide by copyright law or other applicable law
and abide by terms of service for the sources from which the Social Media Content was obtained. Service Provider does
not license the Social Media Content and- is not responsible for Your use of the Social Media Content. Your use of
Social Media Content is at Your sole risk.
3. Authorized Users.
3.1 Authorized Users. The number of Authorized Users granted access hereunder is set forth in the Order
Form.
3.2 Additional and Reassignment of Authorized Users. Unless otherwise specified in the applicable Order
Form: (i) SAAS Services may be accessed by no one other than the Authorized Users; (ii) additional subscriptions may
be purchased for additional Authorized Users for prorated fees during the term of this Agreement; and (iii) such
additional Authorized User accounts shall terminate on the same date as the pre-existing Authorized User accounts
terminate. Authorized User account subscriptions are for designated Authorized Users only and cannot be shared, but
may be reassigned to new Authorized Users replacing farmer Authorized Users who no longer require ongoing use of
the SAAS Services. You shall designate at least one (1) Authorized User to act as an administrator who will be
responsible for requesting set-up and removal of Authorized User accounts and for other administrative tasks related to
Your use of the Services.
4. Support Services and Training.
4.1 Support Services. Service Provider will provide reasonable support efforts that do not require code
changes ("Support Services") at no additional charge. Service Provider may provide upgraded support to You at
mutually agreed upon rates, if available, through an additional Order Form referencing this Agreement.
4.2 Service Limitations; Maintenance. The Service may be temporarily unavailable, without notice, from
time to time, including due to required maintenance, improvements, telecommunications interruptions, or other
disruptions affecting the applicable third,party provider of Social Media Content and the Internet generally. In addition,
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Service Provider reserves the right to take down applicable servers hosting the SAAS Service upon reasonable notice
to conduct routine regularly scheduled maintenance checks ("Scheduled Maintenance"); provided that, the number of
Scheduled Maintenance checks each month during the term of this Agreement will not be excessive in relation to
Service Provider's historical Scheduled Maintenance practices and patterns. Service Provider will use commercially
reasonable efforts to perform Scheduled Maintenance outside of regular business hours. Service Provider will not be
responsible for any damages or costs incurred by You in connection with Scheduled Maintenance performed in
accordance with this Agreement.
5. Additional Services. The parties may add additional training services and/or consulting, interface
development or other services by mutual agreement by adding an additional Order Form referencing this Agreement.
6. Fees and Payment
6.1 Fees. Fees for the initial term of this Agreement are set forth in the Order Form. Service Provider
reserves the right to modify its Fees for any renewal term upon forty-five (45) days' notice to You.
6.2 Payment Terms. You shall pay the Fees as specified in the Order Form. I Service Provider will invoice
You in advance and otherwise in accordance with the relevant Order Form, Invoiced charges are due net 45 days from
the invoice date. You are responsible for providing complete and accurate billing and contact information to Service
Provider and notifying Service Provider of any changes to such information. If You provide automatic payment
information, You authorize Service Provider to store the information and use it to charge the associated billing source
according to the Order Form without further authorization until termination of the Order Form or this Agreement. If
automatic payment is terminated and not replaced within three business days of notice, Service Provider has the right to
suspend access to the Service by You and Yqur Authorized Users until payment is current.
6.3 Taxes. Each party shall be responsible for any personal property taxes on property it owns or leases, for
franchise and privilege taxes on its business, and for taxes based on its net income or gross receipts. Service Provider
shall be responsible for any sales, use, excise or similar taxes payable by Service Provider on any goods or services used
or consumed by Services Provider in providing the Services hereunder. You shall be responsible for any sales, use,
excise or similar taxes that are imposed on any charges made by Service Provider to You under the terms of this
Agreementrl-0 J+' e, eKEent- apps;c4le.
7. Responsibilities of the Parties.
7.1 Registration Information. You will promptly provide to Service Provider the name and contact
information of each Authorized User to register each Authorized User (collectively, the "Registration Information")
to use the SAAS Service. Service Provider acknowledges that such Registration Information (and all of Your Data)
is Your (and/or Your affiliates' and/or Authorized Users') -confidential and proprietary information, and Service
Provider shall maintain and protect such information with the same care and measures to avoid unauthorized
disclosure or access as Service Provider uses with its own confidential information (but in no event less than a
reasonable standard of care) and will use such information solely to carry out the purposes for which the information
was disclosed.
7.2 User IDs. Each Authorized User will have a unique User ID for his or her access to the SAAS Service.
You will exert commercially reasonable efforts to ensure that Your Authorized Users will use only their respective
assigned User IN and not another's User ID. You will adopt and maintain such security precautions for User IDs to
prevent their disclosure to and use by unauthorized persons and will promptly notify Service Provider if You become
aware that the security or integrity of a User ID or password has been compromised.
7.3 Access and Compliance. You agree that (a) You are responsible for all obligations under this Agreement
arising in connection with Your use, including those of Authorized Users, of the Services; (b) You are responsible for
any act or omission by any of Your users of the Services, which, if performed or omitted by You, would be a breach of
this Agreement and any such act or omission of any Authorized User will be deemed to be a breach of this Agreement
by You; (c) You will use commercially reasonable efforts to prevent unauthorized access to or use of the Services; and
(d) You and Your Authorized Users will only access and use Services in accordance with this Agreement and applicable
laws.
7.4 Computer System. You will: (a) cooperate and consult with Service Provider in the set-up and
activation of the SAAS Service for You, and (b) provide and maintain Your own Internet access and all necessary
communications equipment, software and other materials necessary for Authorized Users to access and use the SAAS
Service. You are responsible for the security of Your own computer systems and the security of Your access to and
connection with the SAAS Service.
7.5 No Interference with Service Operations. You will not knowingly take any action that: (a) interferes or
attempts to interfere with the proper working of the SAAS Service or engage in any activity that disrupts, diminishes the
quality of, interferes with the performance of, or impairs the functionality -of the SAAS Service; (b) circumvents,
disables, or interferes or attempts to circumvent, disable, or interfere with security -related features of the SAAS Service
or features that prevent or restrict use, access to, or copying of any data or enforce limitations on use of the SAAS
Service; or (c) imposes or may impose, in Service Provider's reasonable discretion, an unreasonable or
disproportionately large load on the SAAS Service infrastructure.
8. Term and Termination.
8.1 Term of Agreement. This Agreement commences on the Effective Date and continues until terminated in
accordance with this Agreement or as provided in the Order Form. Unless otherwise specified in an Order Form, the
term of the Order Form shall automatically renew for subsequent one year terms unless either party provides notice to
the other party at least forty-five days prior to the beginning of the upcoming renewal tens.
8.2 Termination for Cause. A party may terminate this Agreement (i) for cause upon 15 days written notice
to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii)
immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to
insolvency, receivership, liquidation or assignment for the benefit of creditors. Without limiting any remedies
otherwise available to You under law or in equity, if You terminate this Agreement as a result of any event described in
this Section 8.2, (a) Service Provider shall refund to You a pro -rata amount of any fees pre -paid by You for which You
did not receive use of the SAAS Service in accordance with this Agreement and (b) You will have no further payment
obligation to Service Provider.
8.3 Effect of Termination. Service Provider will destroy any of Your Data still residing on Service
Provider's systems within thirty days after the termination of this Agreement. The definitions herein and the terms of
Sections 8-12 (inclusive) shall survive the expiration or termination of this Agreement.
9. Proprietary Rights; Publicity.
9.1 Proprietary Rights. Service Provider is and will"remain the exclusive owner of all right, title and interest
in and to the SAAS Service and Updates, including all intellectual property rights therein. As between Service Provider
and You, You are and will remain the exclusive owner of all right, title and interest in and to Your Data, including all
intellectual property rights therein.
9.2 Publicity. Except as expressly provided herein with respect to certain of Your Data, Service Provider
shall have no right to use Your intellectual property, including, but not limited to, Your name, trademarks, logos (or the
names, trademarks or logos of Your affiliates), in whole or in part, for any purpose. Neither party shall publicize or
make any press release or public disclosure relating to this Agreement, the other party or the relationship between the
parties, except with the prior written consent of the other party` y un les 5 SwCln d; 5C,t0 5 u rC— , s re $u i re- F
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9.3 Feedback, To the extent that Service Provider receives from You or any of Your Authorized Users any
suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the
SAAS Service or any other products or services ("Feedback"), Service Provider may use, disclose and exploit such
Feedback without restriction, including to improve the Services and to develop, market, offer, sell and provide other
products and services.
4
10. Representations; Limitations of Liability.
10.1 Covenants, Representations and' Warranties. Each party agrees to comply with all applicable laws and
regulations in connection with performing its obligations under and exercising its rights under this Agreement. Service
Provider represents and warrants that: (a) the SAAS Service complies with all relevant API terms and conditions and
policies of each applicable third party provider of Social Media Content (such as Twitter, YouTube, Flickr, Picasa and
Instagram) accessible through the SAAS Service, and the SAAS Service (excluding Your use of the Social Media
Content) complies with all applicable laws, rules and regulations; (b) Service Provider has all rights and licenses
necessary in order make the SAAS Service available to You under this Agreement and for Service Provider to grant the
rights and licenses granted by Service Provider to You under this Agreement, and Your use of the SAAS Service
(excluding Your use of the Social Media Content) shall not infringe upon (whether direct or contributory),
misappropriate, or otherwise violate the intellectual property or other rights of any third party or otherwise subject You
or any of Your affiliates to any royalty or other fees, obligations, or attribution of any type by You to any third party;
and (c) there are no actions, suits, proceedings, or other impediments, actual or threatened against Service Provider that
would undermine, prevent or impair Service Provider from falfilling its obligations or granting the rights to You as
provided under this Agreement.
10.2 Disclaimer. Except as expressly provided herein, Service Provider malces no warranties related to
the Services provided hereunder, and hereby disclaims all warranties, express or implied, including without
limitation, warranties of merchantability and fitness for a particular purpose. You assume complete
responsibility for the selection of the Services to achieve Your intended results and for Your use of the results
obtained from the Services. Service Provider does not warrant that the Services will meet Your requirements or
that they will be uninterrupted or error free. Service Provider is not.responsible for Your inability to access the
SAAS Service or for any degradation of the Service caused by or resulting from any resources or factors outside
of Service Provider's control.
10.3 Limitations of Liability. In no event will Service Provider (including its affiliates, employees,
officers, directors and agents) be liable for any consequential, indirect, special, incidental, exemplary or punitive
damages under this Agreement or in couneetion with any Services provided hereunder, including without
limitation, damages for loss of business profits, or other pecuniary loss arising out of the use or inability to use
the Services, even if advised of the possibility of such damages and even if available remedies are found to have
failed of their essential purpose. The total liability, if any, of Service Provider (including its affiliates, employees,
officers, directors and agents) in the aggregate over the term of this Agreement for all claims, causes of action or
liability whether in contract, tort or otherwise arising under or in any way related to this Agreement and/or the
Services provided hereunder, shall be limited to the lesser of: (a) Your direct damages, actually incurred, or (b)
the total fees paid by You to Service Provider in the most recent six (6) month period. Notwithstanding the
foregoing, Service Provider's sole obligation in the event of an error in the performance of any Services under
this Agreement shall be limited to re -performing the Services.
11. Indemnification.
11.1 Indemnification of You by Service Provider. Service Provider agrees to defend, indemnify and hold
harmless You, Your members, affiliates, partners and successors, and Your and their officers, directors, partners,
shareholders, representatives, agents, licensees and employees from and against all third party claims, actions,
liabilities, losses, expenses, damages and costs, including but not limited to attorney's fees, whether fixed or contingent,
actual or threatened, in law or in equity (collectively, the "Claims", or individually, a "Claim"), that may, at any time,
arise out of or relate to any breach or alleged breach by Service Provider of any of its representations, warranties and/or
covenants set forth in Section 10.1 above.
11.2
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11.3 Indemnification Procedures. Any party seeking to be indemnified under this Section 11 shall as
promptly as reasonably practicable notify the indemnifying party in writing of any Claim subject to the indemnities set
forth in this Section 11; provided, however, that failure to so notify the indemnifying party after receiving actual notice
of a Claim shall not relieve the indemnifying party from its indemnification obligations under this Agreement unless if;
and only to the extent that, such failure to notify the indemnifying party has a material adverse impact on the
indemnifying party. After receiving such notice, the indemnifying party shall assume and have exclusive control over
the defense of such Claim, including, without limitation, the selection and retention of counsel and the disposition of
any such Claim (by compromise, settlement or otherwise); provided, however, that the selection and retention of
counsel, and any settlement or compromise of any Claim which may materially, impact the indemnified party, shall be
subject to the indemnified party's prior written approval, which shall not be unreasonably withheld. It is pre -agreed that
any Claim alleging copyright, patent, trademark or other intellectual property infringement or misappropriation of the
Services, or any part thereof, shall be considered to materially impact You for purposes of the foregoing. The
indemnified party shall cooperate in all reasonable respects with the indemnifying party in the defense and disposition
of such CIaim, at the indemnifying party's expense.
12. General.
12.1 .Assignment, Successors. No right or license under this Agreement may be assigned or transferred by
either party, nor may any duty be delegated by either party without the other party's prior written consent, except that
You may assign, transfer or delegate this Agreement to any affiliate of Yours and that either party may transfer or
assign this agreement to any successor entity or to an acquirer of all or substantially all of the business, stock or assets
of such party relevant to this Agreement. Any assignment, transfer or delegation in contradiction of this provision will
be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and
assigns of You and Service Provider.
12.2 Farce Majeure. Notwithstandipg any other provision of this Agreement, no party to the Agreement shall
be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in
performance (except for the payment of money) due to any cause beyond the reasonable control of; and without fault or
negligence by, such party or its officers, directors, employees, agents or contractors.
12.3 Governing Law. The validity, construction, and interpretation of this Agreement and the rights and duties
of the parties heretotshall be governed by the laws of the State of ,
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12.1 Notice. All notices required or permitted under this Agreement will be in writing and sent by certified
mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice address for Service
Provider is 444 North Wells Street, Suite 502, Chicago, IL 60029, Attention. Michael J. Mulroy; Your notice and
billing address is set forth in the Order Form. Any notice sent in the manner sent forth above shall be deemed
sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited
in the U.S. mail and (ii) in the case of overnight courier or hand delivery, upon delivery. Either party may change its
notice address by giving written notice to the other party by the means specked in this Section.
12.5 Independent Contractor. Service Provider is acting as an indepetident contractor in its capacity under
this Agreement. Nothing contained in this Agreement or in the relationship between You and Service Provider shall be
deemed to constitute a partnership, joint venture, agency, employment or any other relationship between You and
Service Provider.
12.6 Entire Agreement. This Agreement, together with the Order Form and all exhibits hereto, constitutes the
entire agreement between Service Provider and You with respect to the subject matter hereof. There are no restrictions,
promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein.. This Agreement
supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such matter,
including, without limitation, any user agreement or other arrangement for any trial of the SAAS Service prior to the
date hereof,
12.7 Construction of Agreement; Readings. No provision of this Agreement shall be construed against or
interpreted to the disadvantage of any party hereto by any court or arbitrator by reason of such party having or being
deemed to have structured or drafted such provision. The headings in this Agreement are for reference purposes only
and shall not be deemed to have any substantive effect.
12.8 Severability. If any provision of this Agreement is held, by a court of competent jurisdiction to be
contrary to law, then the parties agree to replace it with an enforceable provision reflecting the intent of the original
provision as nearly as possible in accordance with applicable law, and the remaining provisions of this Agreement will
remain in full farce and effect.
12.9 Waiver. The failure of either party at any time to require performance by the other party of any provision
of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. The
waiver by either party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the
provision itself. Any course of performance shall not be deemed to amend or limit any provision of this Agreement.
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Geofeedia Service Agreement
Signature Block
Customer: City of Beaumont
By: City Manager, Kyle Hayes
Kyle Hayes, City Manager
801 Main Street, Ste 300
Beaumont, Texas 77701
Service Provider: Geofeedia, Inc,
By: Chief Revenue Officer, Justin Fite
Justin Fite, Chief Revenue Officer
55 Monument Circle, Suite 710
Indianapolis, Indiana 46204
* Signatory represents that he is authorized to sign this agreement
ORDER FORM
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This order form Is subject to and governed by the terms and conditions of°"¢*"'"
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Pursuant to this Order Form, Customer is purchasing subscriptions to the Geofeedia Service identified below, subject to any
specified usage parameters (e.g. number or types of users, number of locations, volume of data, etc.) and any professional
services described herein. The term of this Order Form shall automatically renew for subsequent one-year terms unless either
party provides notice to the other party at least forty-five days prior to the Contract End Date.
Order information
Account Name: Beaumont Police Department
Prepared By: Ryan Hutchinson
Subscription Term, Bitting & Payment Information
Company Name:
Beamont Police Department
Billing Name:
Billing Email:
Billing Address:
255 College Street
PO Box 3827
Beaumont,'TX 77704
United States
Billing Terms:
Payment Terms:
Contract Start Date: 8/7/2015
Contract End Date: 8/6/2016
Total Amount., $6,000
Billing Phone: 409.832.1234
Bluing Fax:
Payment Method: Invoice
PO Number:
Invoices sent Annually Customer Initials
Invoices for Overage Fees, if any, sent monthly.
Due Upon Receipt. Interest accrues at the rate of 1.5% per month 90 days after the invoice date.
Invoices 30 days or more past due may result In suspension of Services.
Customer: [CUSTOMER NAME] Geofeedia, Inc.
Signature: Signature:
Printed: Printed:
Title: Title:
Page 1 or 2 Geofeedla, Inc,
Rev. February 2015
GNOFE]EDIA SERVICE AGlE}uMENT
'Phis Geofeedia Service Agreement (this "Agreement") governs Your use of the Services (as defined below)
provided by Geofeedia, Inc., a Delaware corporatiortt ("Service Provider"). -771e- 5-,jejm-hr*c5 fetOrti k�l aw#,vrizN��
'�'0 ¢nf¢r in�'o -f2i�S it�Pcen,cnt:
sy executing an Order Form (as defined below) that references this Agreement, You agree to the terms of this
agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent
that You have the authority to bind such entity to these terms and conditions, in which case "You" and "Your"
shall refer to such entity. If You do not have such authority, or if YOU do not agree with these terms and
conditions, You must not a Leapt this Agreement or use the Services. ,
This Agreement, including any Order Fotxns entered into by the parties hereunder, is made effective on the date that the
initial Order Form is monted by Service Provider and You (the "Effective Date"). You and Service Provider may be
referred to herein individually as a "Party" and collectively as the "Partios." You and Service Provider agree to the.
foregoing and as follows:
1. Definitions.
1.1 "Authorized User(s)" means those users identified by name and type of user access on the Order Form
who will receive a User ID in order to access the SAAS Service online,
1.2 "Authorized Purpose(s)" means use of the SAAS Service to search for, organize, review and use the
Social Media Content for the benefit of Customer, and for any other purposes expressly identified on the Order
Dorm.
1J "Order Farm" means an order form issued by Service Provider and executed by You and Service
Provider which sets forth the necessary information relating to the products and services You have the right to
receive and the fees payable to Service Provider, which may include, without limitation, (1) identification of any
Services other than the SAAS Service, (H) minimum fees payable, (iii) the Social Media Content for the Services,
(iv) the Authorized Purposes for which You may access the Services (v) any additional types of ,Authorized Users,
(A) the initial term for the Order Form and (vii) any provisions applicable to renewal terms.
1.4 "SAAS Service" means access and use of Service Provider's Oeofeedia software platform via the
Internet, including but not limited to services capable of searching, retrieving, and storing Social Media Content on
behalf of Authorized Users.
1.5 "Services" means the SAAS Service, Support Services, training and associated services provided by
Service Provider to You under this Agreement. For the avoidance of doubt, Services does not include Social Media
Content.
1.6 "Social Media Content" means information obtained from the Internet by the SAAS Service based on
or related to searches, including but not limited to links, posts and excerpts, and data derived thereof, such as reports,
summaries, graphs and charts,
1.7 "Support Services" has the meaning set forth in Section 4.
1.8 "Update" means any improvement, enhancement, modification and/or changes to the SAAS Service
offered or provided by Service Provider.
1.9 ,"User ID" means aunique user identification assigned to an Authorized User.
1.10 `"Your Data" means all infunnation, records, :lies, and data entered into, ieoeived, prooessed, or stored by
or for You and Authorized Users using the SAAS Service, including, without limitation, Registration Information (as
defined below).
2. SAAS Service
2.1 Access. Service Provider grants to Your Authorized Users it nonexclusive, personal and nontransferable
right to access the SAAS Service during the term of this Agreement solely for the Authorized 'Purposes. Your use of the
SAAS Service is limited to the tenus'of this Agreement and the parameters defined in the Order Form, including its
limits to the number of Authorized Users. As a condition to access, Customer and its Authorized Users agree to comply
with (i) the terms and conditions set forth in this Agreement; (ii) applicable laws and regulations; and (ill) the terms of
service of the platforms from which the Social Media Content originates.
2.2 Restrictions. You will not, in whole or in part, (a) copy the SAAS Service or distribute copies of the
SAAS Service to any third party; (b) modify, adapt, translate, reverse eng3necr,•make alterations, decomplle,
disassemble or make derivative works based on the SAAS Service except as otherwise permitted by law; (c) rent, loan,
sub -license, lease, distribute or attempt to grant any rights to the SAAS Service to third parties; or (d) use the SAAS
Service to act as an application service provider or reseller of the SAAS Service to third parties, or to permit access to
the SAAS Service by any kind to any third party. Use of the SAAS Service is also subject to Service Provider's privacy
policy, available through its website, https.//geofeedia.canVprivacy-policy.
2.3 Bight to Suspend or Terminate the SAAS Services; No Content Incense, In general, the Service is
designed to store links to locations where Social Media Content is hosted on third -party websites that Service Provider
does not own or control. Service Provider does not guarantee that any specific Social Media Content will rt:main
available or accessible. Service Provider reserves the right to immediately suspend or terminate the affected SAAS
Service and/or to remove the Social Media Content from the SAAS Service, if required by the third -party platform fmm
which the Social Media Content was received or if Service Provider reasonably believes that the SAAS Service or the
Social Media Content is or is about to become non -compliant with aay applicable law, regulation or policy, or is likely
to become the subject of a lawsuit or material dispute. However, Service Provider's action or inaction shall not be
deemed review or approval of such use of such Social Media Content. You acknowledge that, depending upon Your
intended use, including copying and reproduction, of the Social Media Content, You may be required to obtainlicenses
or permissions from the author or owner of the Social Media Content, abide by copyright law or other applicable law
and abide by terms of service for the sources from which the Social Media Content was obtained. Service Provider does
not license the Social Media Content and, is not responsible for Your use of the Social Media Content. Your use of
Social Media Content is at Your sole risk.
3. Authorized Users.
3.1 Authorized Users. The number of Authorized Users granted access hereunder is set forth in the Order
Form,
3.2 Additional and Reassignment of Authorized Users. Unless otherwise specified in the applicable Order
Form: (1) SAAS Services may be accessed by no one other than the Authorized Users; (ii) additional subscriptions may
be purchased for additional Authorized Users for prorated fees during the term of this Agreement; and (iii) such
additional Authorized User accounts shall terminate on the same date as the pre-existing Authorized User accounts
terminate. Authorized User account subscriptions are for designated Authorized Users only and cannot be shared, but
may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of
the SAAS Services. You shall designate at least one (1) Authorized User to act as an administrator who will be
responsible for requesting set-up and removal of Authorized User accounts and far other administrative tasks related to
Your use of the Services.
Support Services and Training.
4.1 Support Services. Service Provider will provide reasonable support efforts that do not roquh•e code
changes ("Support Services") at no additional charge. Service Provider may provide upgraded support to You at
mutually agreed upon rates, if available, through an additional Order Form referencing this Agreement,
4.2 Service Limitations; Maintenance. The Service may be temporarily unavailable, without notice, from
time to time, including due to required maintenanoo, improvements, telecommunications interruptions, or other
disruptions affecting the applicable third party provider of Social Media Content and the Internet generally. In addition,
Service Provider reserves the right to take down applicable servers hosting the SAAS Service upon reasonable notice
.to conduct routine regularly scheduled maintenance checks ("Scheduled Maintenance'); provided that, the number of
Scheduled Maintenance checks each month during the term of this Agreement will not be excessive in relation to
Service Provider's historical Scheduled Maintenance practices and patterns. Servico Provider will use commercially
reasonable efforts to perform Scheduled Maintenance outside of regular business hours. Service Provider will not be
responsible for any damages or costs incurred by You in connection with Scheduled Maintenance performed in
accordance with this Agreement.
5. Additional Services, The parties may add additional training services and/or consulting, interlace
development or other services by mutual agreoment by adding an additional Order Forin referencing this Agreement.
Fees and Payment.
6.1 Fees. Fees for the initial term of this Agreement are set forth in the Order Form. Service Provider
reserves the right to modify its Fees fox any renewal term upon forty-five (AS) days' notice, to You.
6.2 Payment Terms. You shall pay the Fees as specified hi the Order Form, Service Provider will invoice
You in advance and otherwise in accordance with the relevant Order Form. Invoiced charges are. due riot 45 days from
the invoice date. You are responsible for providing complete and accurate billing and contact information to Service
Provider and notifying Service Provider of any changes to such information. If You provide automatic payment
information, You authorize Service Provider to store the information and use it to charge the associated billing source
according to the Order Form without further authorization until termination of the Order Form or this Agreement. If
automatic payment is terminated and not replaood within three business days of notice, Service .Provider has the right to
suspend access to the Service by You and Yqur Authorized Users until payment is current.
6,3 Taxes. Each patty shall be responsible for any personal property taxes on property it owns or leases, for
franchise and privilege taxes on its business, and for taxes based on its net income or gross receipts. Service Provider
shall be responsible for any sales, use, excise or similar taxes payable by Service Provider on any goods or services used
or consumed by Services Provider in providing the Services hereunder. You shall be responsible for any sales, use,
excise or similar taxes that are imposed on any charges made by Service Provider to You under the terms of this
Agreement to Atie, 2K t enf aPp l i c able..
Responsibilities (if the Parties.
7.1 Registration Information. You will promptly provide to Service Provider the name and contact
information of each Authorized User to register each Anthorized User (oolleotively, the "Registration Information")
to use the SAAS Service, Service Provider acknowledges that such Registration Information (and all of Your Data)
is Your (and/or Yom affiliates' and/or Authorized Users') uonfidential and proprietary information, and Service
Provider shall maintain and protect such information with the same care and measures to avoid unauthorized
disclosure or access as Service Provider uses with its own confidential information (but in no event less than a
reasonable standard of care) and will use such information solely to carry out the purposes for which the information
was disclosed.
7.2 User IDs. Each Authorized User will have a unique User ID for his or her access to the SAAS Service.
You will exert commercially reasonable efforts to ensure that Your Authorized Users will use only their respective
assigned User IDs and not anther's User ID. You will adopt and maintain such security precautions for User TDs to
prevent their disclosure to acid use by unauthorized persons and will promptly notify Service Provider if You become
aware that the security or integrity of aUser ID or password has been compromised.
7.3 Access and Compliance. You agree that (a) You are responsible for all obligations under this Agreement
arising in connection with Your use, invIuding those of A.uthorizcd Users, of the Services; (b) You are responsible for
any act or omission by any of Your users of the Services, which, if performed or omitted by You, would be a branch of
this Agreement and any such act or omission of any Authorized User will be deemed to he a breach of this Agreement
by You; (c) You will use commercially reasonable efforts to prevent unauthorized access to or use of the Services; and
(d) You and Your Authorized Users will only access and use Services in accordance with this Agreement and applicable
laws.
7.4 Computer System. You will: (a) cooperate and consult with Service Provider In the setup and
activation of the SAAS Service for You, and (b) provide and maintain Your own Internet access and all necessary
communications equipment, software and other materials necessary for Authorized risers to access and use the SAAS
Service. You are responsible for the security of Your own computer systems and the security of Your access to and
connection with the SAAS Service.
7.5 No Interference with Service operatlons. You will not knowingly take any action that; (a) interferes or
attempts to interfere with the proper working of the SAAS Service or engage in any activity that disrupts, diminishes the
quality of, interferes with the performance of, or impairs the functionality -of tho SAAS Service; (b) circumvents,
disables, or interferes or attempts to circumvent, disable, or interfere with soeurityrelatod features of the SAAS Service
or features that prevent or restrict use, access to, or copying of any data or enforce limitations an use of the SAAS
Service; or (c) imposes or may impose, in Service Provider's reasonable discretion, an unreasonable or
disproportionately large load on the SAAS Sorvice infimstrueturc.
Ternh and Termination.
8.1 Torm of Agreement. This Agreement commences on the Effective mate and continues until terminated in
accordance with this Agreement or as provided in the Ordor Form. Unless otherwise specified in an Order Form, the
term of the Order Form shall automatically renew for subsequent one year terms unless either party provides notice to
the other party at least forty-five days prior to the beginning of the upcoming renewal term.
8.2 Termination for Cause. A party may terminate this Agreement (i) for cause upon 1.5 days written notice
to the ather party of a material breach if such breach remains uncured at the expiration of such period, or (i)
immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to
insolvency, receivership, liquidation or assignment for the benefit of creditors. Without limiting any remedies
otherwise available to You under law or in equity, if You terminate this Agreement as a result of any event described in
this Section 8,2, (a) Service Provider shall refund to You a pro -rats amount of any fees pre -paid by You for which You
did not receive use of the. SAAS Service in accordance with this Agreement and (b) You will have no further payment
obligation to Service Provider.
8.3 Effect of Termination. Service Provider will destroy any of Your Data still residing on Sorvioe
Provider's systems within thirty days after the termination of this Agreement. The definitions herein and the terms of
Sections 8-12 (inclusive) shall survive the expiration or termination of this Agreement
Proprietary Rights; )Publicity.
9.1 Proprietary nights, Service Provider is and will remain the exclusive owner of all right, title and interest
in and to the SAAS Service and Updates, including all intellectual property rights therein. As between Service Provider
and You, You are and will remain the exclusive owner of all right, title and interest in and to Your Data, including all
intellectual property rights therein.
9.2 Publicity, Except as expressly provided herein with respect to certain of Your Data, Service Provider
shall have no right to use Your intellectual property, including, but not limited to, Your name, trademarks, logos (or the
names, trademarks or logos of Your affiliates), in whole or in part, for any purpose. Neither party shall publicize or
make any press release or public disclosure relating to this Agreement, the other party or the relationship between the
parties, except with the prior written consent of the other party`) u.n Ie S 5 5ac(N' d i soto Swrc— i s re 0,(4i rcIt
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9.3 r cedbach. To the extent that Service Provider receives from You or any of Your Authorized risers any
suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the
SAAS Service or any other produots or services CTeedbaek"), Service Provider may use, disclose and exploit such
Feedback without restriction, including to improve the Services and to develop, market, offer, sell and provide other
products and services.
10. Representations, Limitations of liability.
10.1 Covenants, Represeutations and Warranties. Bach party agrees to comply with all applicable laws and
regulations in connection with performing its obligations under and merolsing its nights under this Agreement. Service
Provider represents and warrants that: (a) the SAAS Service complies with all relevant API terms and conditions and
policies of each applicable third party provider of Social Media Content (such as Twitter, Youltbe, Flickr, Picasa and
Instagram) accessible through the SAAS Service, and the SAAS Service (excluding Your use of the Social Media
Content) complies with all applicable laws, rules and regulations; (b) Service Provider has all rights and licenses
necessary in order make the SAAS Service available to You under this Agreement and for Service Provider to grant the
rights and licenses granted by Service Provider to You under this Agreement, and Your use of the SAAS Service
(excluding Your use of the Social Media Content) shall not infringe upon (whether direct or contributory),
misappropriate,. or otherwise violate the intellectual property or other rights of any third party or otherwise subject You
or any of Your affiliates to any royalty or other fees, obligations, or attribution of any type by You to any third party,
and (c) there are no actions, suits, proceedings, or other impediments, actual or threatened against Service Provider that
would undermine, prevent or impair Service Provider fi•otn fulfilling its obligations or granting the rights to You as
provided imder this Agreement.
10.2 Disclaimer. Except as expressly provided herein, Service Provider, malres no ►varranties related to
the Services provided hereunder, and hereby disclaims all warranties, express or implied, including without
limitation, warranties of merchantability and fitness for a particular purpose. You assume complete
responsibility for the selection of the Services to achieve Your intended results and for Your rise of the results
obtained from the Services. Service Provider does not warranttliat the Services win meet Your requirements or
that they will be uninterrupted or error free, Service provider is not yesponsfble for Your inability to access the
SAAS Service or for any degradation of the Service caused by or resulting from any resources or factors outside
of Service Provider's control.
10.3 Limitations of Lnbility, in no event will Service Provider (including its affiliates, employees,
officers, directors and agents) be Iiable for any consequential, indirect, special, incidental, exemplary or punitive
damages under This Agreement or in connection with any Services provided hereunder, including 'without
limitation, damages for loss of business profits, or other pecuniary loss arising out of the use or inability to use
the Services, even If advised of the possibility of such damages and even if availablo remedies are round to have
failed of their essential purpose. The total liability, if any, of Service Provider.(including its affiliates, employees,
officers, directors and agents) in the aggregate over the term of this Agreement for all claims, causes of action or
liability whether in contract, tart or otherwise arising under or Warty way related. to this Agreement and/or the
Services provided hereunder, shall be Iimited to the lesser oh (a) Your direct damages, actually incurred, or (b)
the total fees paid by You to Service provider In the roast recent six (b) month period. Notwithstanding the
foregoing, Service Provider's sole obligation in the event of an error in the performance of any Services under
this Agreement shall be limited to re -performing the Services.
11. Indemnification,
11.1 Indemnification of You by Service Provider, Service Provider agrees to defend, indemnify and hold
harmless You, Your members, affiliates, partners and successors, and Your and their officers, directors, partners,
shareholders, representatives, agents, iioenst= and employees from and against all third party claims, actions,
liabilities, losses, expenses, damages and costs, including but not limited to attorney's fees, whether fixed or contingent,
actual or threatened, in law or in equity (collectively, the "Claims", or individually, a "Claim"), that may, at any time,
arise out of or relate to any breach or alleged breach by Service Provider of any of its representations, warranties and/or
covenants set forth in Section 10.1 above.
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11.3 Indemnification -Procedures. Any party seeking to be indemnified under this Section 11 shall as
promptly as reasonably practicable notify the iadcm:a*jng party in writing of any Claim subject to the indemnities sot
forth in this Section 11; provided, however, that failure to so notify the indemnifying patty after receiving actual notice
of a Claire shall not relieve the indemnifying party from its indemnification obligations under this Agreement unless if,
and only to the extent that, such failure to notify the indemnifying party has a material adverse impact on the
indemnifying party. After receiving such notice, the indemnifying parry shall assume and have exclusive control over
the defense of such Claim, including, without limitation, the selection and retention of counsel and the disposition of
any such Claim. (by compromise, settlement or otherwise); provided, however, that the selection and retention of
counsel, and any settlement or compromise of any Claim which may materially impact the indemnified party, shall be
subject to the indemnified party's prior written approval, whicl shall not be unreasonably withheld. It is pro -agreed that
any Claim alleging copyright, patent, trademark or other intellectual property l ufringement or misappropriation of the
Services, or any part thereof, shall be -considered to materially impact You for purposes of the foregoing. 'The
Indemnified party shall cooperate in all reasonable respects with the indemnifying party in the defense and disposition
of such Claim, at the indemnifying party's expense.
12. General,
12.1 Assignment, Successors. No right or license under this Agreement may be assigned or transferred by
either party, nor may any duty be delegated by either party without the other party's prior written consent, except that
You may assign, transfer or delegate this Agreement to any affiliate of Yours and that either party may transfer or
assign, this agreement to any successor entity or to an acquirer of all or substantially all of the business, stock or assets
of such patty relevant to this Agreement. Any assignment, transfer or delegation in contradiction of this provision will
be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and
assigns of You and Service Provider.
12.2 Farce Majeurc. Notwithstanding any other provision of this Agreement, no party to the Agreement shall
he deemed In default or breach of this Agreement or liable for any loss or damages or for any delay or failure In
performance (except for the payment of money) due to any cause beyond the reasonable control of and without fault or
negligence by, such party or its of1•tcors, directors, employees, agents or contractors.
12.3 Governing Law. The validity, construction, and interpretation of this Agreement and the rights and duties
of the parties hcrotoZail be governed by the laws Lof the State o ,its Y" of
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12,4 Notice. All notices required or permitted under this Agreement will be in writing and sent by certified
mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice address for Service
Provider is +194 North 'Wells Street, Suite 502, Chicago, IL 60029, Attention: Michael J. Mulroy; Your notice and
billing address is set forth in the Order Perm, Any notice sent in the manner sent forth above shall he deemed
sufficiently given for all purposes hereunder (1) in the case of certified mail, on the second business day after deposited
in the U.S. snail and (B) in the ease of oveniight courier or hand delivery, upon delivery. Either party may change its
notice address by giving written notice to the other party by the means specified in this Section.
12.5 Independent Contractor. Service Provider is acting as an independent contractor in its capacity under
this Agreement. Nothing contained in this Agreement or in the relationship between You and Service Provider shall be
deemed to constitute a partnership, joint venture, agency, employment or any other relationship between You and
Service Provider.
12.6 Xntire Agreetueut, This Agreement, together with the Order.Form and all exhibits hereto, constitutes the
entire agreement between Service Provider and You with respect to the subject matter hereof. There are no restrictions,
promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement
supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such matter,
including, without limitation, any user agreement or other arrangement for any trial of the SAAS Service prior to the
date hereof.
12.7 Construction of Agreement; headings. No provision of this Agreement shall be construed against or
interpreted to the disadvantage of any party hereto by any court or arbitrator by reason of such party having or being
doomed to have structured or dratted such provision. The headings in this Agreement are for reierenee purposes only
and shall not be deemed to have any substantive effect.
12.8 Severa" Nllty. If any provision of. this Agreement is held by a court of competent jurisdiotion to be
contrary to law, then the parties agree to replace it with an enforceable provision reflecting the intent of the original
provision as nearly as possible in accordance with applicable law, and the remaining provisions of this Agreement will
remain in fall force and effect.
12.9 Waiver, The failure of either party at any time to require performance by the other party, of any provision
of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. The
walver by either party of a breach of any provision of this Agreement shall not be taken or hold to be a waiver of the
provision itself. Any course of performance shall not be deemed to amend or limit apy provision ofthis Agreement.
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Signature Blook
Customer: City of Beaumont
Br. City Manager, Kyle, Hayes
Ll
Kyle Hayes, City Mower
801 Main Street, Ste 300
Beaumont, Texas 77701
Service Wovider., (kofeedia, Ine,
55 Monument V welo, g I All ch A
judiampo., Indiana 4 4
* Signatory represents that he is authorized to sign We agreement
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