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HomeMy WebLinkAboutContract DocuSign Envelope ID:557D6610-A65F-48C7-9C18-4E04A6F52EAE CAG-17-048 PETPOINT APPLICATION SERVICE PROVIDER AGREEMENT 2/28/2017 � 17:17:37 PM EST THIS AGREEMENT is made and entered into as of (the"Effective Date')by and between Pethealth Services (USA)Inc.("Pethealth"),an IDinois Corporation with offices at 3315 Algonquin Road,Suite 450,Rolling Meadows,Illinois, 60008,and the Citv of Renton Police Denartment--------(the"Client"). WHEREAS Pethealth and the Client wish to enter into this Agreement for Pethealth to provide the Client with access to software and seroices on an Application Service Provider("ASP")basis under the terms and conditions described in this Agreement. NOW THEREFORE in consideration of the premises and mutual covenants contained herein,and other good and valuable consideration,the receipt and adequacy of which are hereby acknowledged,the parties hereto agree as follows: 1. Right to Access and Use the Application.Subject to the terxns and conditions of this Agreement and attached Schedules A and B: (i) Pethealth hereby grants to the Client a limited, non-exclusive, non-transferable and revocable right to use the general production version of the PetPoint shelter data management software application,including all updates, improvements,enhancements and additions thereto(the"Application")on a remote basis through the ASP for the purposes set forth herein;and (ii) the Client is authorized to use all functionality and all configurations of the Application that are made available through the ASP,including all updates,that are made generally available by Pethealth. Upon request,Pethealth will provide a complete duplicate of the ClienYs data in Microsoft Access format(the"C1ienYs Data")to the Client for their records on a monthly basis.Except for the limited rights granted by this Section 2,in no event will the Client acquire or retain any other right of access or use or otherwise acquire or retain any right,title or interest in or to the Application(or any modifications,improvements,enhancements or upgrades thereto or derivaHve warks based thereon),whether in the forxn of intellectual property or other ownership rights or interests. 2. Proprietary Rights.The Client acknowledges that the Application(and all modifications,unprovements,enhancements or upgrades thereto or derivative works based thereon)and all Proprietary Information of Pethealth are and shall at all times remain the sole and exclusive property of Pethealth(or its licensors).The Client agrees that it shall not:(i)permit any third party to use the Application or any services provided by Pethealth to the Client hereunder(the"ASP Services"),and(ii)use the Application or the ASP Services in any way for the benefit of any third party whether direcfly or indirecdy. For the purposes of this Agreement,the term"Proprietary Informatiori'means any and all information relating to the Application and the ASP Services, including the databases, computer programs, screen formats, report formats, interactive design techniques,formulae,processes,systems,software,extended format reparts,and other information forming part of,relating to or made available as part of the Application and the ASP Services that is proprietary to Pethealth and/or its licensors and all copyrights, trademarks, service marks, trade secrets, patents, or other intellectual property and ownership rights of Pethealth and its relevant licensors related thereto. Notwithstanding the foregoing, Pethealth acknowledges and agrees that Client is an agency as that term is defined in Washington's Public Records Act (R.C.W. 42.56) ("PRA"). Pethealth acknowledges that the terms of this contract cannot and do not supersede the requirements of the PRA. In the event Client receives a records request pursuant to the PRA,and Client believes responsive records aze"Proprietary Informatiori',Client will provide Pethealth notice as pernutted by the PRA,to allow Pethealth to pursue legal remedies provided in the PRA to enjoin the release of the subject records. 3. ConfidentialInformation. (i) From time to time,the parties may disclose or make available to one another in connection with this Agreement certain inforxnation which is considered by the disclosing party to be confidential or proprietary information about itself or its business, products or services (collectively, "Confidential Information"). Confidential Information includes,but is not limited to,any information,communication or data,in any form,including,but not limited to oral, written, graphic ar electronic forms, which the disclosing party identifies as confidential, business information,financial data,and marketing data.With respect to Pethealth,Confidential Information includes,but is not limited to,Work Product and the information.Confidential Information does not include information that is: (i)generally known in the public(other than through unauthorized disclosure); (ii)rightfully in the receiving os Pe[Point Application Service Provider Agreement-US-v.20170101 G�. SIGNER'S INIT[ALS: DocuSign Envelope ID:557DBB10-A65F-48C7-9C18-4E04A6F52EAE party's possession prior to disclosure as evidenced by competent written proof;(rii)independendy developed by the receiving party without reliance on or reference to the disclosing party's Confidential Information; ar (iv) rightfully received by the receiving party from a third party without a duty of confidentiality,provided that(A) the receiving party has no knowledge that such information is subject to a confidentiality agreement and(B)such information is not of a type or character that a reasonable person would have regarded it as confidential. (ii) Each party agrees that during the Term of this Agreement and thereafter(i)it will use Confidential Information belonging to the disclosing party solely for the purpose(s)of this Agreement and (n) it will take all reasonable precautions to ensure that it does not disclose Confidential Information belonging to the disclosing party to any third party (other than the receiving party's employees,and or agents (collectively, "Staff") on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without the disclosing party's prior written consent.Except for disclosures made pursuant to the requirements of the PRA,the receiving party is responsible for any breach of the confidentiality provisions of this Agreement by its Staff.All Confidential Information shall remain the sole property of the disclosing pariy and no license under any trade secrets, copyrights, or other rights is granted under this Agreement or by any disclosure of Confidential Information under this Agreement. Upon the disclosing party's request, all Confidential Information made available under this Agreement,including copies of Confidential Information,must be promptly returned to the disclosing party or destroyed. For Confidential Infarmation that does not constitute "trade secrets" under applicable law,these confidentiality obligations will expire three(3)years after the termination or expiration of this Agreement. (iii)Notwithstanding the foregoing,Pethealth acknowledges and agrees that Client is an agency as that term is defined in Washington's Public Records Act(R.C.W.42.56)("PRA").Pethealth acknowledges that the terms of this contract cannot and do not supersede the requirements of the PRA.In the event Client receives a records request pursuant to the PRA,and Client believes responsive records are"Confidential Information",Client will provide Pethealth notice as permitted by the PRA, to allow Pethealth to pursue legal remedies provided in the PRA to enjoin the release of the subject records. Further, Pethealth acknowledges and agrees that the Client, as a municipal corporation of the State of Washington,is subject to record retention requirements established by the Washington State Archivist. Notwithstanding the provisions in 3(ii),above,regarding return or destruction of records,Client will comply with the requirements of the then applicable retention requirements and such compliance will not be a violation of any provision of this Agreement. 4. Warranties and LimitaHons. The application is provided on an "as is, where is" basis without any representation or warranty or condition of any kind under applicable law, Pethealth disclaims all conditions, terms, representations and warranties, express or implied, written or oral, statutory or otherwise, including, but not limited to, warranties of merchantability, quality, fitness for a particular purpose, tide or non-infringement of intellectual property. The Client assumes the entire risk as to the performance of the application. Pethealth shall provide no on-site support or on-site maintenance for the application. In no event will Pethealth be liable for any damages whatscever (including, without limitation,those damages resulting from lost profits,lost data or business interruption,special,incidental,indirect,punitive or consequential damages,loss of use,data or profits,business interruption,loss of business information ar other pecuniary loss)arising out of the use,inability to use,or the results of use of the application whether based on warranty,contract or tort(even if the damages are caused by breach of contract including fundamental breach),or by the negligence or other fault of Pethealth. 5. MutualIndemnification Pethealth shall indemnify and hold the Client harmless from and against any loss,damage,claim,cost,expense or other liability suffered or incurred by the Client as a result of any claim or cause of action by a third party arising out of or relating to of alleged infringement of copyright or any other property right arising out of the use of the Application and the ASP Services.The Client shall indemnify and hold Pethealth harmless from and against any loss,damage, claim, cost, expense or other liability suffered or incurred by Pethealth (including but not limited to reasonable attorney's fees and costs)as a result of any claim or cause of action by a third party arising out of or relating to:(i)the Client's use of the Application and the ASP Services,ar(ii)ownership or rights in any data received by Pethealth from the Client or any information derived therefrom. 6. Force Maieure.If Pethealth is prevented,hindered or delayed in whole or in part from or in performing any of its obligations under this Agreement due to any event beyond its reasonable control(each a"Force Majeure Event"),then its obligations under this Agreement shall be suspended for so long as the Force Majeure Event continues. Any delay or failure in the performance by Pethealth hereunder shall be excused if and to the extent caused by the occurrence of a Force Majeure.For purposes of this Agreement, Force Majeure shall mean a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of Pethealth claiming Force Majeure,including acts of God,fires,floods,explosions,riots, /os PetPoint Application Service Provider Agreement-US-v?0170101 l�� SIGNER'S INITIALS: DocuSign Envelope ID:557D6610-A65F-48C7-9C18-4E04A6F52EAE wars, hurricane, sabotage, terrorism, vandalism, accident, restraint of government, governmental acts, injunctions, insurance regulatory and compliance acts and labor strikes. 7. Fees And Expenses. (i) Applicafiion Use and ASP Services Fee.The Client will pay Pethealth an annual Application Use and ASP Services fee as specified on Schedule A hereto(the"Fee"). (ii) Avplication Services Fees.Upon the Client's reasonable request,and provided that Pethealth then has available the necessary resources,Pethealth will provide the Client additional database conversion, training,and support services in addition to the ASP Services("Additional Services"),including services where required at the Client's facilities.The Client will pay Pethealth for all time and materials,quarterly in arrears,at Pethealth's then published service rates,for any Additional Services provided at the request of the Client. (iii)Discounts.Pethealth will provide the Client with certain discounts to the Fee as described in Schedule A hereto. (iv)Taxes.The Client shall be responsible for any sales,use,excise,value-added,services,consumption or other tax that is assessed on the grant of the right to use the Application or the provision of the ASP Services(or any part thereo�or on any payments due to Pethealth hereunder. (v) Onboarding Fee.T'he Client will pay Pethealth a one-time onboarding fee as specified on Schedule A. 8. Term and Termination.Each party shall be entided to terminate this Agreement by providing thirty(30)days'prior written notice to the other party,provided,however,that Pethealth shall be entifled to terminate this Agreement immediately if the Client shall commit a breach of this Agreement. Upon termination of this Agreement for any reason, the Client shall immediately cease use of the Application and Pethealth shall provide to the Client a complete duplicate of the Client's Data in Microsoft Access format. 9. General. This Agreement shall not be assigned by the Client without the prior consent in writing of Pethealth. Any purported assignment in contravention of this provision shall be null and void.This Agreement shall be binding on and shall inure to the benefit of the Client and Pethealth and their respective successors and permitted assigns. 'This Agreement shall be governed by and construed in accordance with the laws of the State of Washington,and the federal laws of the United States applicable therein without regard to the conflicts of law principles thereof.This Agreement,together with Schedule A and B attached hereto,constitutes the entire agreement between Pethealth and the Client on the subject matter hereof and supersedes and terminates as of the date hereof, all prior oral or written agreements, arrangements or understandings between the parties.The obligations imposed by Sections 2,3,4,and 5 shall survive the termination of this Agreement. This Agreement may be reviewed by Client at any time upon request. Terms and conditions contained in Schedule A and B and this Agreement are subject to change;Client will be notified of intended changes upon thirty (30) days'notice and may review the revised agreement by request.The Client's continued use and abidance of the revised terms and conditions after thirty(30)days will constitute an acceptance of the revised terms and conditions. 10. Publici .Neither party without the express written consent of the other party shall:(a)advertise or otherwise make known to others any information regarding this Agreement including but not limited to,any fee or commission arrangements;(b) use any endorsement,quote,or piciure implying endorsement of the other party or its employee(s),in any advertising,sales promotion, press releases or other public document; or (c) use or display the name or mark(s) of the other party. This provision shall survive termination of this Agreement.Notwithstanding the foregoing,Pethealth acknowledges and agrees that Client is an agency as that term is defined in Washingtori s Public Recards Act (R.C.W. 42.56) ("PRA"). Pethealth acknowledges that the terms of this contract cannot and do not supersede the requirements of the PRA. In the event Client receives a records request pursuant to the PRA,that requires the disclosure of the terms of this Agreement,the fees paid,or any records or information not covered as Proprietary or Confidential, above, Pethealth hearby consents to the release thereof. os PetPoint Application Service Provider Agreement-US-v.20170101 �,� SIGNER'S INTTIALS: DocuSign Envelope ID:557D6610-A65F-48C7-9C18-4E04A6F52EAE IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the Effective Date. Organization: Renton Pol i ce Department Billing Address: 1055 S Grady way City: Renton State: wA Zip Code: gg057 Phone: (425) 430-7640 Organization Email: ckarl ewi cz@rentonwa.gov Billing Email Address: ckarl ewi cz@rentonwa.gov Organizatiori s Authorized Signer Name: �had Karl ewi cz OocuSiqMtl by� Organization's Authorized Signature: �� ��Wi� 111C49F7d80fi4A0 Signer's Tide: Commander Signer's Phone: (425) 430-7640 Signer's Email: ckarl ewi cz@rentonwa.gov Date Signed: 2/2g/z017 � 17:17:37 PM ES Pethealth Services(USA),Inc. Authorized Signer: Todd Whi tti ngton 3315 Algonquin Road Suite 450 Rolling Meadows,IL 60008 Signer's Title: Di rector of Opti mi zati on (866)630-7387 D S pMtl bY: Email:software-solutionsQpetpoint.com Authorize Signature:�� 6/BF34F4F1B8423 DS PetPoint Application Service Provider Agreement-US-v.20170101 G� S[GNER'S INITIALS: DocuSign Envelope ID:557DB610-A65F-48C7-9C18-4E04A6F52EAE SCHEDULE A FEES 1. Annual Auplication Use and ASP Service Fee:The Annual Application Use and Service Fee and ASP Services fee is payable by the Client on an annual basis(every twelve months)and will be due on the first day of each contract year according to the following fee structure: Shelter Category(intakes/yr) Annual Fee Level 1 (<=1,000) $1,800 Leve12(I,001-5,000) $5,400 Level 3(5,001-10,000) $9,600 Level 4(10,001-I5,000) $15,000 Level 5(15,001-20,000) $18,000 Level 6(20,001-30,000) $30,000 Level 7(>30,000) $36,000 2. Onboardine Fee:The Onboarding Fee is payable by the Client at the time of licensure and will be due at the same time as this agreement,according to the following fee structure: Software Product Onboarding Fee PetPoint Professional $1,000 3. Discount Model: A discount up to 100% can be applied to the Application Use and Service Fee noted above if the Client is participating in the following programs: A. 40%discount will be applied if client participates in the 24PetWatch Trial of Insurance Program as described in Schedule B and does not promote,recommend or advertise any other pet insurance program. B. 40%discount will be applied if the Client participates in the 24PetWatch Microchip Program as follows: l. Client agrees to exclusively purchase and use the 24PetWatch microchip recovery program For the purposes of clarification, the Client shall not be required to implant a 24PetWatch microchip into canine and feline companion animals that have already been microchipped. 2. Client agrees to register all microchips in the 24PetWatch pet recovery service via PetPoint. Client accepts there will be a fee for processing non-24PetWatch microchips in adopted animals,effective 90 days after the"effective date". 3. Client ensures all adopted dogs and cats over the age of 12 weeks are microchipped and registered in the 24PetWatch pet recovery service(including a valid e-mail address from the adopter). C. 20%discount will be applied if the Client agrees to post pets available for adoption on their website(s)using PetPoint's Adoptable Search Module(which is provided at no cost). If Client does not have a website,they agree to setup and maintain a homepage on www.petango.com from within the Application. The setup of the PetPoint Adoptable Search Module and/or homepage on Petango must be completed within ninety(90)days ofthe Client commencing daily use ofthe ASP.The format used to display animal data(the"real estate") cannot be altered by the Client. Pethealth may alter, change or modify the PetPoint Adoptable Search Module and Petango.com real estate without prior notification.The Client acknowledges that the real estate used to display the animal data is owned by Pethealth and as such may contain messaging for Pethealth and/or third parties. D. Note that this discount structure has no impact on the onboarding fee noted above. DS PetPoint Application Service Provider Agreement-US-v.20170101 �,� SIGNER'S INITIALS: DocuSign Envelope ID:557D6B10-A65F-48C7-9C18-4E04A6F52EAE SCHEDULE B 24PETWATCH TRIAL OF INSURANCE PROGRAM 1. The Client agrees to issue the 24PetWatch Trial of Insurance through PetPoint to all adopters of dogs and cats,except in situations where the ado ter refuses to accept the Trial of Insurance.Client further understands that except for puppies&kittens 8-12 weeks old, all animals must have a microchip to be issued a Trial. Client acknowledges that the adopter must confirm the Trial of Insurance in order to receive coverage. 2. For situations where either the adopter or animal are ineligible to receive the Trial of Insurance,the Client agrees to issue an Offer of Insurance through PetPoint,except in situations where the adonter refuses to accept the Of}'er of Insurance,or if the adopter is domiciled in a state where the 24PetWatch Trial of Insurance may be unavailable,or where the Trial is not permitted by law. 3. The Client agrees to explain the 24PetWatch Trial of Insurance&Offer of Insurance to all adopters of dogs and cats receiving either. 4. The Client agrees to ensure that proper training is provided to all paid and volunteer personnel that are employed by the Client in properly administering and presenting the 24PetWatch Trial of Insurance Program at the point of adoption. 5. The Client agrees to ensure that proper consent is collected at the time of adoption from the adopter and the same is properly recorded in the system for the purposes of contacting the adopter by way of email and telephone communications regarding the 24PetWatch Trial of Insurance Program. 6. The Client agrees to ensure physical separation of all 24PetWatch Trial of Insurance Program materials and documents from other adoption materials upon presentation to the adopter. 7. The Client agrees to display the 24PetWatch Trial of Insurance Program marketing materials prominently at their premises. 8. The Client agrees to re-order 24PetWatch Trial of Insurance Progam materials on an"as-needed"basis. 9. The Client agrees to provide Pethealth with space on the home page of the Client's Website with hyperlinks to Pethealth's websites and other mazketing opportunities through the Client's shelter or rescue group as mutually agreed. The Client agrees to allow Pethealth to use their name and logo in Pethealth marketing materials. os PetPoint Application Service Provider Agreement-US-v:L0170101 C�, SIGNER'S INITIALS: