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HomeMy WebLinkAbout541167 VOX METROPOLIS INC (TEXTIZEN) - PURCHASE ORDER - 9151828City of art Collins PURCHASE ORDER PO Number Page 9151828 1 of 2 This number must appear on all invoices, packing slips and labels. Date: 03/30/2015 Vendor: 541167 Ship To: COMMUNITY DEV & NEIGHBORH VOX METROPOLIS INC CITY OF FORT COLLINS TEXTIZEN 281 N COLLEGE AVE 155 9TH ST FORT COLLINS CO 80521 SAN FRANCISCO CA 94103 Delivery Date: 03/27/2015 Buyer: PAUL, GERRY Note: Line Description Quantity Ordered UOM Unit Price Extended Price Textizen Survey 1 LOT LS 4,200.00 Downtown Plan City of Fort Collins Director of Purchasing and Risk Management This order is not valid over $5000 unless signed by Gerry S. Paul City of Fort Collins Purchasing, PO BOX 580, Fort Collins, CO 80522-0580 Phone:970-221-6775 Fax:970-221-6707 Email:purchasing@fcgov.com Total Invoice Address: City of Fort Collins Accounting Department PO Box 580 Fort Collins, CO 80522-0580 invoices @fcgov.com ra•rxnl . �/ I Y Ili ._r ( I I I Page 2 of 2 1. COMMERCIAL DETAILS. Tax exemptions. By statute the City of Fort Collins is exempt from state and local taxes. Our Exemption Number is 98-04502. Federal Excise Tax Exemption Certificate of Registry 84-6000587 is registered with the Collector of Internal Revenue, Denver, Colorado (Ref Colorado Revised Statutes 1973, Chapter 39-26, 1 14 (a). Goods Rejected. GOODS REJECTED due in failure to rroet specifications, either when shipped or due to defects of damage in transit, may be retuned to you for credit and are not to be replaced except upon receipt of written instructions from the City of Fort Collins. Inspection. GOODS are subject to the City of Fort Collins inspection on arrival. 11. NONWAIVER. Failure of the Purchaser to insist upon strict performance of the terms and conditions hereof, failure or delay to exercise any rights or remedies provided herein or by law, failure to promptly notify the Seller in the event of a breach, the acceptance of or payment for goods hereunder or approval of the design, shall not release the Seller of any of the warranties or obligations of this purchase order and shall not be deemed a waiver of my right of the purchaser to insist upon strict performance hereof or any of its rights or remedies as to my such goods, regardless of when shipped, received or accepted, as many prior or subsequent default hereunder, nor shall any purported oral modification m rescission of this purchase order by the Purchaser operate as a waiver of any of the terms hereof. Final Acceptance. Receipt of the merchandise, services or equipment in response to this order can result in 12. ASSIGNMENT OF ANTITRUST CLAIMS. authorized payment on the pan of the City of Fort Collins. However, it is to be understood that FINAL Seller and the Purchaser recognize that in actual economic practice, overcharges resulting from antitrust ACCEPTANCE is dependent upon completion of all applicable required inspection procedures. violations are in fact boom by the Purchaser. Theretofore, for good cause and as consideration for executing this purchase order, the Seller hereby assigns to the Purchaser any and all claims it may now have or hereafter Freight Terms. Shipments must be F.O.B., City of Fort Collins, 700 Wood St., Fart Collins, CO 80522, unless acquired under federal or state antitrust laws for such overcharges relating to the particular goods or services otherwise specified on this order. If permission is given to prepay freight and charge separately, the original feight purchased or acquired by the Purchaser personal to this purchase order. bill most accompany invoice. Additional charges for packing will not be accepted. Shipment Distance. Where manufacturers have distributing points in various parts of the country, shipment is expected from the nearest distribution point to destination, and excess freight will be deducted from Invoice when shipments are made from greater distance. Permits. Seller shall procure at sellers sole cost all necessary permits, certificates and licenses required by all applicable laws, regulations, ordinances and rates of the state, municipality, territory or political subdivision where the work is performed, or required by any other duly consfimted public authority having jurisdiction over the work of vendor. Seller further agrees to hold the City of Fort Collins harmless from and against all liability and loss incurred by them by reason of an warned or established violation of any such laws, regulations, ordinances, rules and requirements. Authorization. All parties to this contract agree that the representatives are, in fact, bona fide and possess full and complete authority to bind said parties. LIMITATION OF TERMS. This Purchase Order expressly limits acceptance to the terms and conditions stated herein set forth and any supplementary or additional term: and conditions annexed hereto or incorporated herein by reference. Any additional or different terms and conditions proposed by seller are objected to and hereby rejected. 2. DELIVERY. PLEASE ADVISE PURCHASING AGENT immediately if you cannot make complete shipment to arrive on your promised delivery date as noted. Time is of the essence. Delivery and performance must be effected within the tine stated on the purchase order and the documents attached herein. No acts of the Purchasers including, without limitation, acceptance ofpartial late deliveries, shall operate m a waiver of this provision. In the event ofany delay, the Purchaser shall have, in addition to other legal and equitable remedies, the option of placing this order elsewhere and holding the Seller liable for damages. However, the Seller shall not be liable for damages as a result of delays due to causes not reasonably foreseeable which are beyond its reasonable control and without its fault of negligence, melt acts of God, acts of civil or military authorities, governmental priorities, fires, strikes, need, epidemics, wars or riots provided that notice of the conditions causing such delay is given to the Purchaser within five (5) days of the time when the Seller first received knowledge thereof In the event of my such delay, the date of delivery shall be extended for the period equal to the time actual ly lost by reason of the delay. 3. WARRANTY. The Seiler warrants that all goods, articles, materials and work covered by this order will conform with applicable drawings, specifications, samples and/or other descriptions given, will be fit for the purposes intended, and performed with the highest degree of care and competence in accordance with accepted standards for work of a similar nature. The Seller agrees to hold the purchaser harmless from any loss, damage or expense which the Purchaser may suffer or incur on account of the Sellers breach of warranty The Seller shall replace, repair or make good, without cost to the purchaser, any defects or faults arising within one (1) year or within such longer period of time as may be prescribed by law or by the terms of my applicable warranty provided by the Seller aRer the date of acceptance of the goods famished hereunder (acceptance not to be unreasonably delayed), resulting from imperfect or defective work done or materials famished by the Seller. Acceptance or use of goods by the Purchaser shall not consrimte a waiver of any claim under this warranty. Except as otherwise provided in this purchase order, the Sellers liability hereunder shall extend to all damages proximately caused by the breach of any of the foregoing warranties or guarantees, but such liability shall in no event include loss of profits or loss of use. NO IMPLIED WARRANTY OR MERCHANTABILITY OR OF FITNESS FOR PURPOSE SHALL APPLY. 4. CHANGES IN LEGAL TERMS. The Purchaser may make changes to legal terms by written change order. 5. CHANGES IN COMMERCIAL TERMS. The Purchaser may make any changes to the terms, other than legal terms, including additions to or deletions from the quantities originally ordered in the specifications or drawings, by verbal or written change order. If any such change affects the amount due or the time of perurmance, hereunder, an equitable adjustment shall be made. 6. TERMINATIONS. The Purchaser may at any time by written change order, terminate this agreement m to any or all portions of the goods then not shipped, subject to any equitable adjustment between the parties as to any work or materials then in progress provided that the Purchaser shall not be liable for any claims for anticipated profits on the uncompleted Pathan of the goods and/or work, for incidental or consequential damages, and that no such adjustment be made in favor of the Seller with respect to my goods which are the Sellers standard stock. No such termination shall relieve the Purchaser or the Seller of any of their obligations as to any goods delivered hereunder. 7. CLAIMS FOR ADJUSTMENT. Any claim for adjustment must be asserted within thirty (30) days from the date the change or termination is ordered. 8. COMPLIANCE WITH LAW. The Seller warrants that all goods sold hereunder shall have been produced, sold, delivered and furnished in strict compliance with all applicable laws and regulations to which the goods ate subject. The Seller shall execute and deliver such documents as may be required to of at or evidence compliance. All laws and regulations required to be incorporated in agreements of this character are hereby incorporated herein by this reference. The Seller agrees to indemnify and hold the Purchaser harmless from all costs and damages suffered by the Purchaser as a result of the Sellers failure in comply with such law. 9. ASSIGNMENT. Neither parry shall assign, transfer, or convey this order, or my monies due or to become due hereunder without the prior written consent of the other parry. 10. TITLE. The Seller warrants full, clear and unrestricted fide to the Purchaser for all equipment, materials, and items furnished in performance of this agreement, free and clear of my and all liens, restrictions, reservations, security interest encumbrances and claims archers. 13. PURCHASERS PERFORMANCE OF SELLERS OBLIGATIONS, If The Purchaser directs the Seller to correct nonconforming or defective goods by a date to be agreed upon by the Pumbaser and the Seller, and the Seller thereafter indicates its inability or unwillingness to comply, the Purchaser may cause the work to be performed by the most expeditious means available to it, and the Seller shall pay all costs associated with such work. The Seller shall release the Purchaser and its contractors of my tier from all liability and claims of my more restating from the performance of such work. This release shall apply even in the event of fault of negligence of the parry released and shall extend to the directors, officers and employees of such party. The Seller's contractual obligations, including warranty, shall not be deemed to be reduced, in any way, because such work is performed or caused to be performed by the Purchaser. 14. PATENTS. Whenever the Seller is required to use any design, device, material or process covered by later, patent, trademark or copyright, the Seller shall indemnify and save harmless the Purchaser from any and all claims for infringement by reason of the use of such patented design, device, material or process in connection with the contract, and shall indemnify the Purchaser for any cost, expense or damage which it may be obliged to pay by reason of such infringement at any time during the prosecution or after the completion of the work. In case said equipment, or any part thereof or the intended use of the goods, is in such suit held to consfiote infringement and the use of said equipment or part is enjoined, the Seller shall, at its own expense and at its option, either procure for the Purchaser the right to continue using said equipment or parts, replace the same with substantially equal but noninfringing equipment, or modify it so it becomes noninfringing. I5. INSOLVENCY. If the Seller shall become insolvent or bankrupt, make an assignment for the benefit of creditors, appoint a receiver or trustee far any of the Sellers property or business, this order may forthwith be canceled by the Purchaser without liability. 16. GOVERNING LAW. The definitions of states used or the interpretation ofic agreement and the rights of all parties hereunder shall be construed under and governed by the laws of the State of Colorado, USA. The following Additional Conditions apply only in cases where the Seller is to perform work hereunder, including the services of Sellers Representative(s), on the premises of others. 17. SELLERS RESPONSIBILITY. The Seller shall carry on said work at Sellers own risk until the same is fully completed and accepted, and shall, in case of any accident, destruction or injury to the work and/or materials before Sella's final completion and acceptance, complete the work at Sellers own expense and to the satisfaction of the Purchaser. When materials and equipment are famished by others for installation or erection by the Seller, the Seller shall receive, unload, sore and handle same at the site and become responsible therefor as though such materials and/or equipment were being famished by the Seller under the order. 18. INSURANCE. The Seller shall, at his own expense, provide for the payment of workers compensation, including occupatiorul disease benefits, to its employees employed on or in connection with the work covered by this purchase order, and/or In their dependents in accordance with the laws of the state in which the work is m be done. The Seller shall also earry comprehensive general liability including, but not limited to, contractual and automobile public liability insurance with bodily injury and death limits of at least $300,000 for any one person, $500,000 for any one accident and property damage limit per accident of S400,000. The Seller shall likewise require his contractors, if any, m provide for such compensation and insurance. Before any of the Sellers or his mnttudors employees shall do any work upon the premises of others, the Seller shall furnish the Purchaser with a catif cam that such compensation and insurance have been provided. Such certificates shall specify the date when such compensation and insurance have been provided. Such certificates shall specify the date when such compensation and insurance expires. The Seller agrees that such compensation and insurance shall be maintained until after the entire work is completed and accepted. 19. PROTECTION AGAINST ACCIDENTS AND DAMAGES. The Seller hereby assumes the entire responsibility and liability for any and all damage, loss or injury of any kind or nature whatsoever to persons or property caused by or resulting from the execution of the work provided for in this purchase order or in connection herewith. The Seller will indemnify and hold harmless the Purchaser and any or all of the Purchasers officers, agents and employees from and against any and all claims, losses, damages, charges or expenses, whether direct or indirect, and whether to persons or property to which the Purchaser may be put or subject by return of any act, action, neglect, omission or default on the part of the Seller, any of his contractors, or any of the Sellers or contractors officers, agents or employees In case my suit or other proceedings shall be brought against the Purchaser, or its officers, agents or employees at any fire on account or by reason of my act, action, neglect, omission or default of the Seller of my of his contractors or any of its or thew officers, agents or employees as aforesaid, the Seller hereby agrees to assume the defense thereof and to defend the same at the Sellers own expense, to pay any and all costs, charges, attorneys fees and other expenses, my and all judgments that may be incurred by or obtained against the Purchaser or my of its or their officers, agents or employees in such suits or other proceedings, and in case judgment or other lien be placed upon or obtained against the property of the Purchaser, or said parties in or as a result of such suits or other proceedings, the Seller will at once cause the same to be dissolved and discharged by giving bond or otherwise. The Seller and his contractors shall take all safety precautions, fornish and install all guards necessary for the prevention of accidents, comply with all laws and regulations with regard to safety including, but without limitation, the Occupational Safety and Health Act of 1970 and all rules and regulations issued pursuant thereto. Revised 0312010 Textizen Textizen Services Agreement This Services Agreement (the "Agreement") is effective on the date last executed by the Parties ("Effective Date"). by and between Vox Metropolis, Inc. d/b/a Textizen, a Delaware Corporation with principal offices at 155 9th Street, San Francisco, CA 94103 ('Textizen") and City of Fort Collins with principal offices at 281 North College Avenue, Fort Collins, CO 80524 ("Customer"). Textizen and Customer may each be referred to as a "Party" and together as the "Parties." 1. DEFINITIONS 1.1 "Survey" means the surveys created by Customer and/or Textizen for which Textizen receives answers and/or feedback from Survey Respondents as part of the Services. 1.2 "Survey Data" means all questions, responses, and other data and Information received by Textizen from Survey Respondents in response to a Survey. 1.3 "Survey Respondent" means any individual Survey recipient that provides Survey feedback or responses to Textizen. 1.4 "Personal Data" means any information relating to an Identified or Identifiable Survey Respondent by direct or Indirect means collected during the performance of the Services, Including but not limited to names, email addresses, and phone numbers. 1.5 "Work Product" means, together, Customer Provided Work Product, Jointly Created Work Product, and Textizen Provided Work Product, each as defined in Section 6 (WORK PRODUCT.). 2. BACKGROUND. Textizen and Customer enter Into this Agreement to provide Customer access to Textizen's survey platform which enables outreach via text messaging technology. Textizen's platform provides Customers an easy - to -use web interface to design and launch surveys. Each survey gets Its own phone number allowing anyone with a text messaging capable mobile phone to participate in the survey and provide feedback via text messaging. Results are collected and displayed via Textizen's survey platform. 3. SERVICES. Customer and Textizen agree on the descriptions of the services, fees and obligations detailed in the First Order Form, attached as Exhibit A and incorporated into this Agreement. From time to time during the term of this Agreement, Customer and Textizen may execute additional order forms in the same general form of the First Order Form (each, an "Order Form") . Textizen agrees to use commercially reasonable efforts to provide Customer with access to the general services available via Its survey platform, as generally described In Section 2 (Background), and any additional or customized services described in the First Order Form and any additional Order Forms (the "Services"). Each Order Form shall become binding upon execution by each of the Parties hereto and, upon such execution, shall be incorporated into this Agreement and be subject to the terms and conditions of this Agreement. Each Order Form shall be appended to this Agreement as an exhibit. On the Effective Date, Textizen shall provide the means for Customer to access In full the Services as set forth In Section 3 (License to Services) below. 4. PASSWORDS. Textizen shall provide the means for Customer to create a username and password for each user associated with Customer's account. Customer will require its users to maintain the confidentiality of all passwords and will inform users that each password Is to be used only by the authorized user, provided that each authorized user may permit an employee or contractor of Customer to use the applicable password to perform a task or service for such authorized user. Customer is entirely responsible for any and all activities that occur under the Customer's account and all charges incurred from use of the Services. Customer agrees to immediately notify Textizen of any unauthorized use of the Customer's account or any other breach of security known to Customer. 55. CUSTOMER SUPPORT. Except as expressly stated on the Order Form, the Fees set forth in each Order Form Include Textizen's standard telephone, email and web support. Customer will name two (2) support contacts that will be designated to contact Textizen Customer Support to report Issues or request assistance. G. WORK PRODUCT. 6.1 Customer Provided Work Product. As between Textizen and Customer, Customer will own all work product (e.g., survey questions) that Customer creates Independent of Textizen and provides to Textizen in the development of a Survey (the "Customer Provided Work Product"). Customer is solely responsible for the accuracy. quality, integrity, legality, reliability, appropriateness and copyright of all Customer Provided Work Product. Textizen may monitor such Customer Provided Work Product in order to ensure that Customer is complying with the terms of this Agreement. To the extent that such Customer Provided Work Product does not contain or reveal proprietary or Confidential Information of Customer, Textizen may use such Customer Provided Work Product in the course of Its business and In the development of surveys for other customers. 6.2 Jointly Created Work Product. Unless otherwise agreed, in the event that Textizen and Customer work together to create work product in the development of a survey (e.g., via group discussions or email exchanges), both Textizen and Customer will jointly own all such work product (the "Jointly Created Work Product"). Customer may each use the Jointly Created Work Product In the course of Its business without obtaining the permission of Textizen. To the �f.7740707 .,S extent that such Jointly Created Work Product does not contain or reveal proprietary or Confidential Information of Customer. Textizen may use such Jointly Created Work Product in the course of its business and in the development of surveys for other customers. 6.3 Textizen Provided Work Product. In some instances in performing the Services, Textizen may develop for or provide to Customer certain work product to be used in a Survey (the "Textizen Provided Work Product"). For example, Textizen may provide Customer with sample survey questions via access to an online sample survey library. Customer may only use such Textizen Provided Work Product as part of a Survey or in the publication or subsequent use of the Survey Data. Under no circumstances will Customer have any rights, other than those granted herein, to such Textizen Provided Work Product. 7. SURVEY DATA. As between Textizen and Customer. Textizen will own all data, information, material or feedback received by Textizen from Survey Respondents in response to a Survey (the "Survey Data") including all Personal Data included within such Survey Data. Customer's rights to access and use the Survey Data will be governed by the license granted to Customer in Section a (Licenses to the Services). Notwithstanding anything to the contrary in this Agreement. Textizen has no responsibility for the accuracy. quality, integrity, legality, reliability, appropriateness and copyright of any Survey Data. H. LICENSE TO THE SERVICES. 8.1 Services. Subject to the terms and conditions of this Agreement, Textizen hereby grants to Customer (and to each Customer employee or authorized contractor who accesses the Services by means of Customer's account and an authorized password). a non-exclusive, non -transferable (except as provided in Section 18 (General)). non-sublicensable license during the term of this Agreement to access and use the Services. 82 Restrictions. Customer shall not, directly or indirectly (and shall ensure its subcontractors do not), (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Servires; (ii) modify, translate, or create derivative works of the Servires; (Hi) rent, lease, distribute, sell, resell, assign, sublicense, or otherwise transfer rights to the Services; (iv) use the Services for timeshanng or service bureau nrhe o in. Vho 4.e efir of v Ihh.� narM1r rv1 . ..... nnlin c frnm the Cendnne nr hd\ , n hhn .it'1 xN,�t] rl l pl l W I,O W I ul , I IGI II ,t,. tll. LICENSE TO SURVEY DATA. Subject to the terms and conditions of this Agreement, 5.1 Survey Data. Textizen hereby grants to Customer (and to each Customer authorized contractor who accesses the Services by means of Customer's account and an authorized password), a non-exclusive, perpetual, freely transferable, sublicensable license to use, reproduce, modify, make derivative works of, publish, display, distribute, perform, exploit and disclose all or any portion of the Survey Data (but excluding any Personal Data included within the Survey Data). 92 Personal Data. Textizen hereby grants to Customer (and to each Customer authorized contractor who accesses the Services by means of Customer's account and an authorized password), a non-exclusive, perpetual, non- trarsferable (except as contemplated in Section IS (General)), non-sublicensable license to use, reproduce, and exploit any Personal Data Included within the Survey Data delivered to Customer by Textizen, Customer may only use such Personal Data for Customer's internal business purposes. For clarity, unless provided otherwise in an Order Form, (I) Textizen will have no obligation to disclose to Customer the phone numbers of the Survey Respondents and (ii) Either party may not publicly display, publish, disclose, sell or otherwise transfer such Personal Data to unaffiliated third parties. Under no circumstances may Customer use or disclose Personal Data in any manner that is not in accordance with all local, state, national, and international laws and regulations. 10. CUSTOMER OBLIGATIONS. 10.1 Trademarks. Subject to the terms and conditions of this Agreement, as described in an Order Form, Customer may be required to use Textizen's service mark, service name, trade name, trademark, design or logo(s) (-Trademarks") in any marketing, promotion, or advertisement relating to the Survey and/or Customer's use of the Services. The use of such Trademarks shall be In accordance with the provisions of Textizen's then -current trademark guidelines, as may be provided and updated from time -to -time by Textizen. Customer shall conduct its business and use such Trademarks only in a manner that will reflect positively on the Trademarks and Textizen's reputation. Customer shall use the Trademarks in a manner that does not derogate Textizen's rights in the Trademarks or the value of the Trademarks, and shall take no action that would interfere with, diminish or tarnish those rights or value. 102 Survey Respondent Notice. Customer agrees that it will not advertise, promote, market, or otherwise solicit use of the Services without providing any required notice, as described in an Order Form ("Survey Respondent Notice"). Such Survey Respondent Notice, for example, may inform the Survey Respondents of any potential charges that might be Imposed by their mobile phone carrier If they participate in the survey or may inform the Survey Respondents that participation in the survey provides consent for Customer to contact the Survey Respondents in the future. In addition to any Survey Respondent Notice, Textizen may also provide such notice to Survey Respondents via a text message or other means. 10.3 General Obligations. Customer shall be solely responsible for the actions of its users (Including any Customer authorized contractors) while using the Services and the contents of Its transmissions through the Services (including, without limitation, Work Product). Customer agrees to: (1) Include a link to the Textizen privacy policy in all materials advertising a Survey; (2) to abide by all local, state, national, and international laws and regulations applicable to Customer's use of the Services: (3) not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Services or another's computer; (4) not to use the Services for illegal purposes; (5) not to Interfere or disrupt networks connected to the Services; (6) not to post, ef_I1,I G)O7 .,S promote or transmit through the Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature; (7) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; and (8) not to Interfere with another customer's use and enjoyment of the Services or another entity's use and enjoyment of similar services. Customer acknowledges and agrees that Textizen neither endorses the contents of any customer communications or Work Product nor assumes any responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any Infringement of third party Intellectual property rights arising therefrom or any crime facilitated thereby. Textizen may remove any violating content posted on the Services or transmitted through the Services, without notice to Customer. 71. FEES AND TAXES. 11.1 Fees. Customer agrees to pay the undisputed applicable fee(s) set forth in the Order Form within 30 days of the invoice date ("Fees"). All Fees are quoted and payable In U.S. Dollars, and except as otherwise provided In this Agreement, are non-refundable. In addition to such Fees, Customer shall pay all applicable sales, use and other taxes or duties (excluding taxes based on Textizen's income). 112 Payments. Fees for the Services will be invoiced In advance in accordance with payment frequency and other terms set forth in the applicable Order Form. Unless otherwise stated, undisputed Fees are due within 30 days from the invoice date. If Customer believes that the bill Is Incorrect, Customer must contact Textizen in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Customer, at its discretion, will make payments via check or other approved method. 12. TERM. The Services shall commence on the Effective Date and shall continue for a period of one (1) year or such other period specified in the Order Form. Customer shall be responsible for all undisputed Fees for the applicable term prior to which termination occurs, and Textizen shall not issue any refunds for such term, except as provided herein. 13. TERMINATION. 13.1 Breach. Either Party may terminate this Agreement upon written notice if the other Party has breached a material term of this Agreement and has not cured such breach within thirty (30) days of receipt of notice from the non -breaching Party specifying the breach. 13.2 Insolvency. Either Party may terminate this Agreement if (1) the other Party has a receiver appointed for it or its property; (ii) the other Party makes an assignment for the benefit of creditors; (III) any proceedings are commenced by, for or against the other Party under any bankruptcy, insolvency or debtor's relief law; or (iv) the other Party is liquidated or dissolved. 13.3 Failure to Pay. Textizen may terminate the Services, at its sole option, with or without notice to Customer if any undisputed payment is delinquent by more than sixty (60) days. 13A Effect of Termination. Textizen shall not be liable to Customer or any third party for suspension or termination of the Services in accordance with this Agreement. If Customer or Textizen terminates this Agreement, Customer will be obligated to pay the undisputed balance due for all Services provided prior to termination. Upon the effective date of expiration or termination of this Agreement for any reason, whether by Customer or Textizen, Customer's right to use the Services shall Immediately cease. Sections 6 (Work Product), 7 (Survey Data), 9 (License to Survey Data), 11 (Fees and Taxes)(with respect to any payments outstanding as of the termination nor expiration of this Agreement), 13.4 (Effect of Termination), 14 (Proprietary Rights), 15 (Confidentiality), 16 (Limited Warranty and Warranty Disclaimer), 16 (Limitation of Liability), 17 (General), of this Agreement shall survive Its expiration or termination for any reason. Textizen is not required to retain any Work Product for longer than a period of thirty (30) days after expiration or termination of this Agreement. Customer may request that Textizen provide Customer the ability to conduct a mass export of Work Product and Survey Data (not including any Personal Data). In the event that Customer needs assistance with such mass export, Textizen may provide assistance at Its then current rates on a time and materials basis. After thirty (30) days, Textizen may delete and destroy all Work Product without notice or further liability to Customer. 14. PROPRIETARY RIGHTS. Customer acknowledges that the Services and all content contained therein, including but not limited to text, software, music, sound, photographs, video, graphics, and third party materials and advertisements (collectively, "Content") is proprietary to Textizen or such third parties, and Textizen or such third parties retain exclusive ownership of the same throughout the world, including but not limited to all related copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights thereto. Other than as provided in Section 8 (License to Services), this Agreement does not transfer any right, title or Interest in the Services or the Content to the Customer. 15. CONFIDENTIALITY. 15.1 Obligations. Each of the Parties agrees to maintain in confidence any confidential Information of the other Party, whether written or otherwise, disclosed by the other Party in the course of performance of this Agreement ("Confidential Information"). For purposes of this Agreement "Confidential Information" means nonpublic information that a Party to this Agreement ("Disclosing Party") designates as being confidential to the Party that receives such information ("Receiving Party") or which, under the circumstances surrounding disclosure ought to be treated as confidential by the Receiving Party. "Confidential Information" includes, without limitation, Information in tangible or Intangible form relating to and/or including the Disclosing Party's business policies or practices, and Information received from others that Disclosing Party is obligated to treat as confidential. The Receiving Party shall not disclose, use, transmit, inform or make available to any entity or person any of the Confidential Information, except as a necessary part of performing Its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the Parties' respective rights therein. Each Party agrees to restrict access to the Confidential Information of the other Party to those employees or agents who require access In order to perform hereunder, and, except as otherwise ef_71A0747 „C provided, neither Party shall make Confidential Information available to any other person or entity without the prior written consent of the other Party. 15.2 Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving Party at the time of the disclosure; (II) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the Receiving Party; (iii) subsequently disclosed to the Receiving Party on a non - confidential basis by a third party not having a confidential relationship with the other Party hereto that rightfully acquired such information; or (iv) communicated to a third party by the Receiving Party with the express written consent of the other Party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or ether Judicial or governmental process shall not be considered a breach of this Agreement; provided the Receiving Party provides prompt notice of any such subpoena, order, or the like to the other Party so that such Party will have the opportunity to obtain a protective order or otherwise oppose the disclosure. 15.3 Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, each Party shall promptly return to the other Party, or destroy, as the Parties agree, all copies of the other Party's Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall L_.n_ nfl., nlri erl nr n_In__e!r_ e_,i __ _ o� n! n_ __r_h rnalo al shall hn_ nr! n nil M_.i rFn __....... .. O. form or for any reason. 16. LIMITED WARRANTY AND WARRANTY DISCLAIMER. 16.1 Limited Warranty. Textizen warrants that the Services will perform substantially in accordance with the functions described in the documentation provided by Textizen under normal use and circumstances by authorized users of the Services. For any breach of this warranty, the Customer's sole and exclusive remedy and Textizen's sole and exclusive liability, shall be for Texti7en to correct any reported failure In the Services causing a breach of this warranty. If Textizen is unable to provide such correction, the Customer shall be entitled to recover that prepaid portion of the Fees in respect of the non -conforming Services. i6.2 Disclaimer. EXCEPT AS EXPRESSLY STATED IN SECTION 16.1 (LIMITED WARRANTY). THERE ARE NO WARRANTIES OR CONDITIONS (WHETHER IMPLIED OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A ...-.._______.....___.._ _____ _ ____.____. ___ ____ ___._ ._ I.VUKdC V: ULNL:.iIi Un Vi.iU_U. Ih,i:J-.l ul l:.l :.ti�V,l.C-, lJh 7..r, -.lhl 11.A,,.., till l: .. ,n,. i �i�.oi.,ii�-• OR IMPLIED WARRANTIES AND CONDITIONS INCI UOING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILiI Y, MEHCHANI ABLE OUALI I OR FITNESS FOR ANY PURPOSE. PARTICULAR, SPECIFIC OR OTHERWISE. TEXTIZEN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET THE CUSTOMER'S REQUIREMENTS 7. LIMITATION OF LIABILITY. 17.1 Limitation on Direct Damages. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER IN THE TERM IN WHICH THE ACTION AROSE, FOR THE SERVICES THAT GAVE RISE TO THE DAMAGES CLAIMED, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT OR TORT, INCLUDING NEGLIGENCE. 17.2 Disclaimer of Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF TEXTIZEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 17.3 Essential Purpose. The essential purpose of this Section 17 (LIMITATION OF LL4BILITY.) is to limit the potential liability of the Parties arising under this Agreement. The Parties acknowledge that the limitations set forth in this Section 17 (LIMITATION OF LIABILITY) are material to the amount of Fees due and payable under this Agreement. 8. GENERAL All notices to a Party shall be in writing and sent to the addresses specified below and shall be deemed to have been duly given when received, If personally delivered; when receipt is electronically confirmed. If transmitted by facsimile or email; the day after It is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. To Textizen Vox Metropolis, Inc. d/b/a Textizen 155 9th Street San Francisco, California 94103 To Customer Cltv of Fort Collins 281 North College Avenue Fort Collins, CO 80524 Neither this Agreement nor any Services may be assigned or transferred by either Party without prior written consent of the other Party, provided that either Party may assign without consent In the event of a merger, consolidation, reorganization, or sale of all or substantially all assets related to this Agreement. This Agreement, together with all addenda, schedules, and exhibits, constitutes the 0679A0707 ,t entire agreement between the Parties and supersedes all prior and contemporaneous agreements and understandings between the Parties relating to the subject matter hereof. This Agreement may be amended or superseded only by a written instrument signed by both Parties. This Agreement shall be governed by the laws of the State of Colorado, excluding its conflict of laws rules, and the Parties hereby agree that any and all disputes related to or arising out of this agreement shall be subject to the exclusive jurisdiction of the federal and/or state courts, as applicable, situated In the State of Colorado. Any provision of this Agreement held to be unenforceable shall not affect the enforceability of any other provisions of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any exhibit or attachment, the terms of this Agreement shall control. Neither Party shall be in default If its failure to perform any obligation under this Agreement, is caused by supervening conditions beyond that Party's reasonable control, Including acts of God, civil commotion, war, strikes, labor disputes, vandalism or "hacker" attacks, acts of terrorism or governmental demands or requirements ("Force Majeure Events"). Additionally, Customer agrees that Textizen may Issue a press release Identifying Customer as a Textizen customer, subject to Customer's prior approval. Pre-printed terms and conditions on or attached to any Customer purchase order shall be of no force or effect._ In Witness Whereof, the Parties have caused this Agreement to be executed by duly authorized representatives of the Parties as of the Effective Date. VOX METROPOLIS, INC.,/D///BB/A TEXTIZEEN By: 'Itti 6 r'l��/1/l , 4"e� Signature Name: Michelle Lee Print or Type Title: CEO Date: 3/25/2015 ef-ZIA0707 „C CITY OF FORT C L I P4 By: Signature Name: Gam% " rint or Type Title: ti G,^{.'wC' ti!= �`!✓Lr`a�Sf r} Date: Exhibit A First Order Form This Order Form ("Order Form"), effective on the date last executed by the Parties, is entered into by and between Vox Metropolis. Inc. d/b/a Textizen, a Delaware Corporation with principal offices at 155 9th Street. San Francisco, CA 94103 ("Textizen') and the City of Fort Collins, with principal offices at 281 North College Avenue. Fort Collins, CO B052,1 ("Customer"), and, pursuant to that certain Textizen Services Agreement dated as of March 25, 2015 by and between Textizen and Customer (the "Agreement"). Any term not otherwise defined herein shall have the meaning set forth in the Agreement. 1. SERVICES AND OBLIGATIONS: a. Textizen Services Textizen will provide the following services: i. Use of SMS survey delivery and response collection platform for Downtown Plan engagement ii. 1 intake survey and up to 12 follow-up messages or surveys III. Kickoff, training, and strategy support, up to 2 hours per month b. Third -Party Access to Personal Data Either party may not publicly display, publish, disclose or transfer the Personal Data to any third parties. C. Trademark Guidelines Customer may not market, promote, or advertise the services without using Textizen's Trademarks as described in this section. I. Customer will include the following Textizen logo in all print publications If. Customer will include a URL to Textizen's website In all emalls Texrizen will provide the above services described in Settion 1 (Services and Obligations) of this Order Form through 6/30/16. 3.FEES: Base fee: $3.000 Monthly fee: E100/month 12-Month Total: $4,200 Platfo,m access may be extended with written notice from Customer for up to 6 months at $100 per month. 4.OPEN DATA DISCOUNT As part of our commitment to open and transparent government, we offer a 3%discount if Client chooses "Share results publicly" option at textizen.com. This will make results available to residents and public without logging In, at textizen.com. Personally identifiable Information (e.g. names, Phon numbers, addresses) may be excluded. Please Initial: ACCEPT DECLINE S. PRI V ACY POLICY: The Textizen privacy policy may be found at http://textizen.com/privacy. 6. SURVEY RESPONDENT NOTICE. Customer agrees that it will not advertise. promote, market, or otherwise solicit use of the Services without providing a clear and conspicuous notice in close proximity to the Survey phone number and instructions that includes the following: a. Information informing the Survey Respondent about what he/she Is participating in; b. Customers company name or brand in manner that makes it clear that Customer is conducting the Survey and not Textizen; C. The number of texts that the Survey Respondent may receive as part of the first Survey; d. A statement that message and data rates may apply (e.g., Standard text message rates apply) 6 sf_71AOW7 .,A