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HomeMy WebLinkAboutCORRESPONDENCE - PURCHASE ORDER - 9192117DocuSign Envelope ID: 413F1E64-4E2B-4646-80E3-684BFDA44A7A SUBSCRIPTION ORDER FORM Customer: City of Fort Collins Contact Name: Gerry Paul Address: 222 Laporte Avenue Fort Collins, CO 80521 Phone: E-Mail: gspaul@fcgov.com Basic Subscription: ❑ Access to the IFTTT Platform ❑ Connect API and SDK ❑ Up to 1,000 connected users ❑ Premium Analytics & Business Insights ❑ Service Health & User Feedback Dashboards ❑ Basic Technical Support Professional Services: Company will use commercially reasonable efforts to provide Customer the professional services described below hereto (“Professional Services”): N/A Fees: ❑ Platform Access Fee: $15,000 ❑ Connected User Fee: $6,000 ❑ Connected User Overage Fee: $2.00 ❑ Professional Services Fee: N/A Total: $21,000 Payment Schedule: Company shall invoice Customer (i) for annual and one-time fees within thirty (30) days of any Order Form execution and each renewal date (if applicable), and (ii) for Connected User Overage Fees, the date that the user cap is exceeded. Payment is due from Customer within thirty (30) days of Customer’s invoice receipt. Method of Payment: □ Wire transfer □ Check Term: Subject to earlier termination as provided below, this Agreement is for the period commencing on the Subscription Start Date and expiring on the Subscription End Date (the “Initial Term”), and shall be automatically renewed for additional periods of the same duration as the Initial Term (each a “Renewal Term”) The Initial Term and all Renewal Terms (if any) shall collectively be the “Term”. Additional Terms: This agreement (“Agreement”) is entered into on November 1, 2019, (the “Subscription Start Date”) and ends on October 31, 2022, (the “Subscription End Date”) between IFTTT Inc. with its principal place of business at 923 Market Street, San Francisco, CA 94103 (“Company”), and the Customer listed above (“Customer”). This Agreement includes and incorporates the above Order Form, as well as the Terms and Conditions found below and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. Each party’s acceptance of this Agreement was and is expressly conditional upon the other’s DocuSign Envelope ID: 822744B2-5F6F-40E3-8D35-7615E6D289D7 DocuSign Envelope ID: 413F1E64-4E2B-4646-80E3-684BFDA44A7A acceptance of the terms contained in the Agreement to the exclusion of all other terms. IFTTT Inc.: Customer: By: By: Name: Name: Gerry Paul Title: Title: Purchasing Director DocuSign Envelope ID: 822744B2-5F6F-40E3-8D35-7615E6D289D7 Director of Sales Connor Mcintire DocuSign Envelope ID: 413F1E64-4E2B-4646-80E3-684BFDA44A7A TERMS AND CONDITIONS 1. PLATFORM 1.1. Subject to Customer’s full compliance with all terms and conditions of this Agreement and Company’s developer guidelines found at https://platform.ifttt.com/guidelines (the “Guidelines”), Company hereby grants Customer a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to access and use the Platform (as defined by the Order Form) for integrating and operating Customer’s products and services (the “Customer Services”) into and through the Platform solely for use by Customer’s end users and other purposes separately authorized by Company in writing. The Platform is subject to modification from time to time at Company’s sole discretion for any purpose deemed appropriate by Company. Company will use reasonable efforts to give Customer prior notice of material modifications. 1.2. Subject to Customer’s full compliance with all terms and conditions of this Agreement and the Guidelines, Company shall use commercially reasonable efforts to (i) make the Platform available to Customer and (ii) perform the Professional Services described in an applicable Order Form (if any). Notwithstanding the foregoing, Company may suspend Customer’s access to the Platform (a) for scheduled or emergency maintenance or (b) in the event Customer is in material breach of this Agreement, including failure to pay any amounts due to Company. Company will use commercially reasonable efforts to provide notice to Customer prior to any scheduled maintenance. 1.3. The parties acknowledge that certain information is to be provided by Customer (“Customer Data”). Further, Customer acknowledges that the Platform may contain links and features that connect to third party websites, products, or services (“Third Party Products”). Company may provide tools and features that enable Customer to import and export Customer Data and other information from and to Third Party Products, including by linking Customer’s account on the Platform with accounts or features of Third Party Products. By using such tools and features, Customer authorizes Company to transfer such Customer Data and other information to and from Third Party Products. Third Party Products are not under Company’s control. This Agreement is not binding upon such third parties, and Company does not endorse such third parties. COMPANY IS NOT RESPONSIBLE, AND HEREBY DISCLAIMS ALL IMPLIED AND EXPRESS WARRANTIES, FOR THE ACTIONS OR INACTIONS OF SUCH THIRD PARTIES OR THE CONTENTS OR PERFORMANCE OF ANY THIRD PARTY. 1.4. Company will not be liable for its failure to perform hereunder this Agreement if such failure is DocuSign Envelope ID: 413F1E64-4E2B-4646-80E3-684BFDA44A7A statutory law); (v) modify or create derivative works of the Platform; (vi) use the Platform to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any third party; (vii) use the Platform to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity; (viii) use the Platform to run Mailist, Listserv, any form of auto-responder, or spam through the Platform; (ix) use the Platform to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to US embargo, hate materials or materials urging acts of terrorism or violence, goods made from protected animal/ plant species, recalled goods, any hacking, surveillance, interception, or descrambling equipment, cigarettes, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, pornography, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, weapons and accessories; (x) use the Platform to violate any law or regulation, any right of any person, including but not limited to intellectual property rights, contract rights, rights of privacy, or rights of personality, or in any manner inconsistent with this Agreement or with any terms or conditions or obligations relating to any third party website, app, API or the like; or (xi) use the Platform to operate nuclear facilities, life support, or other mission critical application where human life or property may be at stake (Customer understand that the Platform is not designed for such purposes and that its failure in such cases could lead to death, personal injury, or severe property or environmental damage for which IFTTT is not responsible). 2.2. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for ensuring that such Equipment is compatible with the Platform and complies with all configurations and specifications set forth in Company’s published policies then in effect. Customer shall also be responsible for maintaining the security of the DocuSign Envelope ID: 413F1E64-4E2B-4646-80E3-684BFDA44A7A . 3.3. Each Party acknowledges that the other does not wish to receive any Proprietary Information from the other Party that is not necessary for each Party to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, each Party may reasonably presume that any unrelated information received from the other Party is not confidential or Proprietary Information. 4. INTELLECTUAL PROPERTY RIGHTS Except as expressly set forth herein, Company alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Platform. If, in the course of performing under this Agreement, Customer provides Company with any written comments, suggestions, or feedback regarding the Platform (“Feedback”), Customer hereby grants Company a non-exclusive, worldwide, royalty-free license to use and disclose the Feedback in any manner Company chooses and, directly or indirectly through third parties, to display, perform, copy, have copied, make, have made, use, sell, offer to sell, and otherwise dispose of Company’s products and services (including any improvements or modifications thereof) embodying the Feedback in any manner and via any media the Company chooses, but without reference to you as the source of the Feedback. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Platform or any intellectual property rights. 5. PAYMENT OF FEES 5.1. Customer will pay all applicable fees (“Fees”) in accordance with the instructions detailed in the Order Form. Currently applicable Fees are set forth in the Order Form. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then current Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email). 5.2. Unpaid Fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower,. Customer shall be responsible for all taxes associated with Platform other than U.S. taxes based on Company’s net income. 5.3. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s Customer Support department. 6. TERMINATION 6.1. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or ten (10) DocuSign Envelope ID: 413F1E64-4E2B-4646-80E3-684BFDA44A7A trade secret. The foregoing obligations do not apply with respect to portions or components of the Platform (i) not created by Company including Customer Data and Customer Services, (ii) that are materially modified after delivery by Company, (iii) combined with other commercially unforeseen products, processes or materials (including Customer Services) where the alleged infringement relates to such combination, (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customer’s use of is not strictly in accordance with this Agreement. Company’s indemnification obligations under this Section are contingent on Customer providing Company: (a) prompt written notice of the claim; (b) the unconditioned right to control the defense and settlement of such claim; and (c) reasonable cooperation in the defense of such claim, at Company’s expense. The indemnification obligations set forth in this Section 8.1 are Company’s sole and exclusive obligations (and Customer’s sole and exclusive remedies) with respect to infringement or misappropriation of intellectual property rights of any kind. 8.2. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PLATFORM OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE PLATFORM OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF COMPANY, WHETHER BASED IN CONTRACT, TO RT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE THE FEES PAID TO COMPANY HEREUNDER IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 9. MISCELLANEOUS 9.1. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the DocuSign Envelope ID: 413F1E64-4E2B-4646-80E3-684BFDA44A7A signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. 9.6. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. 9.7 Company may use the services of subcontractors for performance of services under this Agreement, provided that Company remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Platform as required under this Agreement. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. DocuSign Envelope ID: 822744B2-5F6F-40E3-8D35-7615E6D289D7 other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 9.1 will be null and void. 9.2. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. 9.3. This Agreement shall be governed by the laws of the State of Colorado and the United States without regard to conflicts of laws’ provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Larimer County, Colorado or in the case of a Federal court Denver, Colorado and both parties hereby submit to the personal jurisdiction of such courts. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. 9.4. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. 9.5. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing DocuSign Envelope ID: 822744B2-5F6F-40E3-8D35-7615E6D289D7 days in the case of nonpayment), if the other party breaches any of the terms or conditions of this Agreement. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business. Customer will pay in full for the Platform up to and including the last day on which the Platform is provided. Upon any termination, Company may, but is not obligated to, delete archived data. 6.2. The following Sections shall survive termination or expiration of this Agreement: 1.4, 2.1, 2.4, 3, 4, 5 (to the extent fees remain outstanding), 6.2, 7, 8, and 9. 7. WARRANTY DISCLAIMER COMPANY DOES NOT WARRANT THAT THE PLATFORM OR ANY OTHER SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM OR ANY OTHER SERVICES PROVIDED HEREUNDER. THE PLATFORM AND ALL OTHER SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. 8. INDEMNIFICATION; LIMITATION OF LIABILITY 8.1. Company shall indemnify, defend, and hold Customer and its respective officers, directors, and employees harmless from any and all amounts actually paid to third parties in connection with claims, liabilities, damages and/or costs (including but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) from infringement by the Platform of any United States patent or any copyright or misappropriation of any DocuSign Envelope ID: 822744B2-5F6F-40E3-8D35-7615E6D289D7 Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. Additionally, Customer agrees to be bound by any end-user software agreements that govern the installation and use of such Equipment. 2.3. Customer will cooperate with Company in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Company may reasonably request. Customer will also cooperate with Company in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Platform. 3. CONFIDENTIALITY 3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law. In any event, Company may use for development, diagnostic and corrective purposes any data and information it collects relating to the Platform. 3.2. Subject to the Colorado Open Records Act, C.R.S. 24-72-200.1, et seq. (CORA), both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement. DocuSign Envelope ID: 822744B2-5F6F-40E3-8D35-7615E6D289D7 caused by the Customer Services and/or Customer’s delay in or failure to provide Customer Data. Customer grants Company a world-wide, non- exclusive, royalty-free license during the Term to use and distribute Customer Data solely for the purpose of fulfilling Company’s obligations hereunder this Agreement. Company may use aggregated and de- identified Customer Data solely for the purpose of improving the Platform. Customer represents and warrants that it owns all right, title and interest in and to the Customer Data and Customer Services 1.5. Each party hereby grants the other party a worldwide, royalty-free, sublicensable (as limited below), license to use the other party’s specified branding assets and trademarks, in accordance with such party’s trademark usage guidelines and prior written approval by the other party, solely for those purposes reasonably necessary for: (i) Company to provide and operate the Platform; and (ii) Customer to use the Platform and promote the Customer Services integration with the Platform; provided that each party will have the right to perform quality assurance inspections of each usage and to withhold and/or suspend rights to use such branding asset or trademark if quality is not satisfactory to each party in their sole discretion. Customer acknowledges and agrees, subject to prior written approval by the Customer, that the foregoing Section 1.5 license permits Company to allow third-party developers to use Customer’s branding assets and trademarks solely for the purpose reasonably necessary for such third-party developers to integrate with the Platform. 2. RESTRICTIONS AND RESPONSIBILITIES 2.1. Customer shall not (and shall not authorize or encourage any third party to), directly or indirectly: (i) rent, lease, loan, sell, sublicense, assign, or otherwise transfer any rights in or to the Platform; (ii) clone the Platform, or use the Platform to build an application programming interface, application or product that is competitive with any Company product or service; (iii) remove any proprietary notices from the Platform (or any portion thereof); (iv) decompile, reverse engineer, disassemble, or derive the source code, underlying ideas, concepts or algorithms of the Platform (except as and only to the extent the foregoing restrictions are expressly prohibited by applicable DocuSign Envelope ID: 822744B2-5F6F-40E3-8D35-7615E6D289D7