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HomeMy WebLinkAboutVision Internet Providers - 2015-01-27visionLiveTm Subscription Services Agreement Vision Internet Providers Account Terms and Conditions These Terms and Conditions, and any addendum attached hereto, represents the complete agreement and understanding ("Agreement") between Vision Technology Solutions, LLC DBA Vision Internet Providers ("Contractor"), and the CITY OF HUNTINGTON BEACH, California (the "Client"), and supersedes any other written or oral agreement with regard to the Subscription Services provided for herein Client and Contractor are sometimes individually referred to as "Party" and collectively as "Parties " 1. Ongoing Service Provisions Pursuant to the terms herein, Contractor agrees to provide Hostmg Services, Upgrade Services, and Support Services (collectively "Subscription Services") as provided below for the Client's Office of Business Development websrte, which utilizes Contractor's Vision Content Management System ("VCMS") developed under a prior or concurrent agreement by and between Contractor and Client ("Website Development Agreement") To the extent that the Website Development Agreement and/or any other prior agreement entered into by and between Contractor and Client conflicts with this Agreement, then the terms and conditions of this Agreement shall supersede, replace, and amend any and all conflicting provisions of such prior agreement Contractor will provide Subscription Services to the Client in exchange for payment of fees and compliance with the terms and conditions of this Agreement Subscription Services include the following (a) Hosting Services Contractor will provide shared websrte hosting on a Microsoft Windows Server and shared database hosting on a Microsoft SQL Server for one (1) unique VCMS websrte (b) Upgrade Services Contractor will provide Upgrade Services which include • Enhancements to the backend VCMS functionality • Enhancements to the Included Interactive Components that were developed under the Website Development Agreement or other prior agreement entered mto by and between Contractor and Client • New Interactive Components released from time to time according to the visionLiveTM Roadmap ("Roadmap") • Bug fixes to the VCMS code • Updates to provide compatibility to future versions of Supported Web Browsers (as defined below) within three months of their release Compatibility with previous versions of Supported Web Browsers is not guaranteed Client understands and agrees that the Supported Web Browsers for the frontend of the websrte currently are Firefox, Internet Explorer, Chrome, and Safan Client understands and agrees that Supported Web Browsers for the backend of the websrte currently are the latest released versions at the time of Completion of Firefox and Internet Explorer Client understands and agrees that Supported Web Browsers for visionMobileTM currently are iOS Safan, Android Chrome, and Windows Phone 7 Internet Client's Initials Contractor's Initials Explorer All of the web browsers listed in this paragraph, and any others added by Contractor at its discretion are herein referred to collectively as the "Supported Web Browsers" To receive the Upgrade Services, a non -interrupted Subscription Services Agreement must be in place from time of websrte launch and the VCMS code must be unmodified Upgrade Services do not include • Optional Interactive Components • Modules, Programs, or Software Applications • Conversion to new platforms • Modification of third -party products • Updates to provide compatibility to third -party products, except for those included in VCMS • Upgrades that require modification or customization to websrte design • System configuration, websrte content editing and/or formatting, websrte design, custom data updates, etc (c) Support Services Support Services is defined as technical support for the unmodified VCMS Contractor will provide Support Services to a designated Client account manager, system administrator or webmaster Technical support is generally available by email and telephone from 6 00 AM to 6 00 PM Pacific Time Monday through Friday excluding holidays ("Business Hours"), with emergency support available 24 hours a day, 7 days a week An emergency is defined as the websrte being down for more than ten (10) minutes (d) Redesign Services At the conclusion of year four of an uninterrupted Subscription Services agreement, the Client will be entitled to a basic graphic redesign of one (1) websrte Basic graphic redesign does not include Design Themes Services shall include • Project Management • Wireframe Development • Graphic Design Development with one preliminary concept • Graphic Production Contractor will not develop a sitemap or new content as part of the redesign, but will assist the Client in transferring existing content into the new design 2. Fees Rate $6,600 per year payable to Contractor in U S funds in advance, which rate shall be increased by three percent (3%) per year, for each year of the Initial Term (defined below), and any and all renewal terms, as provided in Section 3 below Contractor shall invoice Client annually within thirty days of start of service or any renewal term as defined below Any services not covered in this Agreement will be subject to additional fees and will be considered extra work (`Extra Work") Extra Work will be billed at Contractor's prevailing hourly rates, which are currently as follows Content Migration, $85/hr, Graphic Production $95/hr, Quality Assurance, Testing, Debugging, Technical Support, Webmaster Services, HTML Programming, $105/hr, Consulting, Project Management, Database Design, Dynamic Programming, $135/hr, Graphic Design, Training, $125/hr Client shall be responsible for any or all additional fees including, without limitation software, applications, online promotion, marketing, copy writing, redesign, change orders, 2 Client's Initialsa Contractor's Initials mailings, fees to any third party vendors if applicable, and websites exceeding IOGB of storage Websrtes exceeding IOGB of storage shall be subject to a monthly fee of $50 per 5GB increment Maintenance work is considered Extra Work as defined herein Calls outside of Business Hours not deemed an emergency as defined above will be subject to a mnumum fee of $135 3. Term The Subscription Services will begin when the websrte is hosted on the production server and remain in effect for a period of five years thereafter (the "Initial Term") With respect to the Initial Term, unless one party has given written notice to the other party of its intent not to renew this Agreement at least thirty (30) days prior to expiration of the Initial Term, this Agreement will continue in effect on a year-to- year basis thereafter until one party gives written notice to the other of its intent not to renew this Agreement at least thirty (30) days prior to the expiration of any renewal term If the term of this Agreement is extended or renewed in accordance with the foregoing, all of the terms and conditions of this Agreement shall continue, unmodified, in full force and effect, until the end of the last applicable renewal or extension term, except that all rates, fees, charges, and compensation payable to Contractor hereunder shall be increased by three percent (3%) per year, for each annual renewal term extending the term hereof 4. Subscription Services Website Usage (a) The Client shall use the Subscription Services in strict accordance with, but not linuted to, all local, state, and federal laws The Client shall not use the Subscription Services for any unlawful or destructive purpose including, but not limited to, copyright and/or trademark infringement The Client hereby represents and warrants that any text, data, graphics, or any other material displayed or published by the Client on its Website is, and shall continue to be, throughout the term of this Agreement, free from violation of or infringement upon copyright, trademark, service mark, patent, trade secret, statutory, common law or proprietary or intellectual property rights of others, and is free from obscene or libelous material (b) The Client represents and warrants that it has or has obtained all rights necessary to display all the images, data, information or other items being displayed at the Client's Website The Client expressly authorizes Contractor to display those images, data, information or other items (c) The Client shall not misuse any of Contractor's resources or cause any disruption to Contractor's business ("Misuse") Examples of Misuse include, but are not limited to, the display of pornography or linking to pornographic material, the sending of chain letters, advertisements, solicitations, or mass mailings to individuals who have not agreed to be contacted in this manner (including, but not limited to, what is commonly referred to as `Spam") (d) The Client shall not use any process, program or tool via Contractor for gaining unauthorized access to the accounts of other parties, including but not limited to, other Contractor clients, customers or account holders or other Contractor systems The Client shall not use Subscription Services to make unauthorized attempts to access the systems and networks of others Client shall not use Contractor's services as a door or signpost to another server (e) The Client shall not use Subscription Services in a manner in which system or network resources are denied to other Contractor clients, customers or account holders This includes, but is not limited, to excessive memory usage and programs that consume excessive CPU resources (f) The Client will have password access to the VCMS through the Subscription Services 3 Client's Initials& Contractor's Initials 9 The Client agrees to be responsible for keeping all passwords secure and will immediately notify Contractor if a password is lost, stolen or compromised in any way The Client shall be responsible for all use of Subscription Services accessed through the Client's passwords The Client's passwords are not transferable to any third party and are subject to any linuts established by Contractor 5. Disclaimers and Acknowledgments (a) The Internet (1) The Client acknowledges that, when using the Internet, the Client is using a completely different physical network than the Contractor communications network and different content than available on Contractor The reliability, availability and performance of resources accessed through the Internet are beyond Contractor's control and are not in any way warranted or supported by Contractor The Client acknowledges that safeguards relative to copyright, ownership, decency, reliability and integrity of content may be entirely lacking with respect to the Internet and content accessible through it Contractor makes no warranty that any systems accessed will be free of computer viruses The Client is responsible for making backup copies of its files The Client assumes all nsk and liability of its use of the Internet (u) The Client specifically acknowledges that Contractor provides access to other systems not controlled by Contractor including, but not limited to, discussion groups, RSS Feeds, websites and databases, that may contain pictures and language intended for adult audiences The Client further understands that Contractor is not responsible for any damages that may result from exposure to such matenal and the Client shall hold Contractor harmless from any damages that may result (in) Contractor does not warrant (a) any connection to, transmission over, nor results or use of, any network connection or facilities provided under ttus Agreement or (b) any third -party applications and software obtained by, for, or on behalf of Client CONTRACTOR MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS OF THE SUBSCRIPTION SERVICES FOR ANY PARTICULAR PURPOSE WHATSOEVER. Contractor assumes no responsibility for any damages suffered by the Client, including, but not linuted to, server down time, loss of data, loss of business, mis-deliveries, delays, non - deliveries, access speed, service interruptions of any kind, or to tturd-party applications and software used by Client In no event, at any time, shall the aggregate liability of Contractor exceed the amount of fees due under ttus Agreement and Contractor shall not be responsible for any lost profits or other damages, including direct, indirect, incidental, special, consequential or any other damages, however caused (iv) The Client acknowledges that the information available through the Internet may not be accurate Contractor has no ability or authority over the matenal In addition, Contractor has no liability for the quality, accuracy, or validity of the data/information delivered over the Internet Use of information gathered through the use of Contractor services is at the nsk of the Client (b) Domain Name and Secure Digital Certificate Client is responsible for all fees charged by the registrar (i e Verisign or Dotster) including setup and renewal fees Client shall be responsible for all licensing fees, if any, including but not limited to secure digital certificate renewal fees Contractor shall not be responsible for maintainmg or renewing domain names, digital certificates, or any other third party registrations 4 Client's Initials K4 Contractor's InitialsIL 6. Indemnification (a) Contractor will defend, hold harmless and indemnify Client from and against all liability costs and expenses including reasonable attorney fees resulting from claims of injury to person, damages to property, or monetary damages arising out of Contractor's negligence or intentional misconduct (b) Intentionally omitted 7. Defaults The occurrence of any one or more of the following shall constitute an Event of Default under this Agreement (a) Any Misuse of Contractor resources that disrupts Contractor's business (b) The Client's breach of any representation, warranty, term or provision of this Agreement 8. Remedies (a) If Contractor discovers that the Client is displaying content that is in violation of any of the foregoing provisions, Contractor may discontinue or suspend access to the Client's Website without prior notice, until the violating item(s) have been resolved However, the Client shall remain liable for all payments due under this Agreement as if access had not been interrupted, (b) Intentionally omited, and/or (c) If an Event of Default occurs and remains uncured for at least ten (10) days after Contractor's delivery of written or email notice to Client, Contractor may immediately terminate Subscription Services and this Agreement 9. Documents & Data, Licensing of Intellectual Property This Agreement creates a non-exclusive and perpetual license for Client to copy, use, or modify for its own use, any and all copyrights, designs, and other intellectual property embodied in this websrte, which are prepared or caused to be prepared by Contractor under this Agreement ("Documents & Data"), to which Contractor retains ownership of all intellectual property rights Notwithstanding anything to the contrary in any of the agreement documents, Client understands and agrees that Contractor shall retain all right, title, and interest to the Vision Content Management SystemTM (also known as the Vision Internet Content Management System, VCMT, VCMS and the Vision Content Management Tool), and Dynamic and Interactive Components 10. Other (a) The headings in this Agreement are intended solely for convemence and shall be given no effect in the construction or interpretation of this Agreement (b) The Client agrees that a failure to exercise or delay in exercising any right, power or privilege on the part of Contractor will not operate as a waiver or estoppel thereof (c) Neither the course of conduct between parties nor any trade practice shall act to modify the provisions of this Agreement except as expressly stated herein 5 Client's Initials Contractor's Initials (d) This Agreement shall be governed by and construed in accordance with the laws of the United States of America, and the State of Califorma Any cause of action of the Client with respect to the services provided hereunder must be instituted within one year after the claim or cause of action has arisen or be forever barred Further, jurisdiction and venue for any cause of action or claim with respect to the services provided hereunder shall be exclusively in the County of Los Angeles (e) Intentionally omitted (f) Intentionally omitted (g) With the intent to be legally bound, each of the undersigned hereby covenants and acknowledges that he, she or it (i) has read each of the terms set forth herein, (n) has the authority to execute this Agreement for such person or entity, and (in) expressly consents and agrees that the person or entity upon behalf of which the undersigned is acting shall be bound by all terms and conditions contained herein (h) The parties have each been advised to seek independent legal counsel in entering into this Agreement and the transactions described herein In the event a party chooses not to seek independent legal counsel, that party does so freely and knowingly and waives any such rights to counsel As a result, the Parties do not believe that the presumptions of Califorma Civil Code section 1654 relating to the interpretation of contracts against the drafter of any particular clause should be applied in this case and therefore the Parties knowingly and freely waive its effects (1) Any delay in the performance by either Party hereto of its obligations hereunder shall be excused when such delay in performance is due to any cause or event of any nature whatsoever beyond the reasonable control of such Party, including, without limitation, any act of God, any fire, flood, or weather condition, any computer virus, worm, denial of service attack, any earthquake, any act of a public enemy, war, insurrection, not, explosion or strike, provided, that written notice thereof must be given by such Party to the other Party within ten (10) days after occurrence of such cause or event 0) This Agreement, including any attachments, is the entire, complete, final and exclusive expression of the parties with respect to the Subscription Services and supersedes all other agreements or understandings, whether oral or written, or entered into between Client and Contractor prior to the execution of this Agreement related thereto No amendment to this Agreement shall be valid and binding unless in writing duly executed by the parties or their authorized representatives (k) It is understood and agreed that if any interpretation is to be made of this Agreement, the same shall not be construed for or against any of the Parties If any provision of this Agreement is determined to be invalid, all other provisions shall remain in full force and effect (1) This Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same Agreement This Agreement becomes effective upon Contractor's receipt of an executed copy of this Agreement and receipt of any sums of money that are provided for herein (m) All notices under this Agreement shall be in writing and effective on the date of delivery if delivered by personal service, Federal Express, or facsinule, or effective three (3) days after deposit in first class U S mail, postage prepaid, to each party as follows (1) Client Huntington Beach Office of Business Development �n 6 Client's Initials 4/ Contractor's Initials Address 20,00 Main Street Huntingtnn RParh, CA 92648 Attn-Business Development Fax (7 4) 375-5087 (2) Contractor 2530 Wilshire Boulevard, 2nd Floor Santa Momca, California 90403 Attn Contract Administrator Cc Rose De Vries Fax (310)656-3103 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates set forth next to their signatures below TY OF HUNTINGTON BEACH DATE '2�- I `� By 61 Print Name A -Vle Q . ^ Print TitleA56544n— VIION TEC OLOGY SOLUTIONS, LLC X)pm ERNET PROVIDERS DATE �" °' By David M Nachman, C e xecutive Officer APPROVED AS TO FORM By. _ ?A f,�Nichaei Getes, City Attorney Client's Initials Contractor's Initials D\ 0 • Exhibit A to Subscription Services Agreement Cl lent and Contractor may have already entered into one or more separate agreements which specify (I ) the inclusion of hncluded and/or Optional Interactive Components and Features and/or (2) browser compatibility, and/or (3) hosting provisions. To the extent that any prior agreement entered into by and between Contractor and Client conflicts with this Aareement, then the terms and conditions of this Agreement shall supersede, replace, and amend any and all conflicting provisions of such prior agreement. 1. Included Interactive Components and Features The following are the initial Included Interactive Components and Features provided in Client's project, subject to upgrades and revisions based on Contractor's then current Included Interactive Components listed on the Roadmap. Additional options may be available and can be added for an additional fee: • Audit Trail Log • Flexible Site Variable Settings • Backend Content Title Search . Image Library • Backend Dashboard • Page Template Library • Broken Link Reporter • Personal Toolbar • Content Review and Publishing • Role -Based Security • Component Manager • Scheduled Content Review • Content Scheduling • SiteMasterT"' Template Builder • Context Sensitive Online Help • Submission Validation (reCAPTCHA) • Departmental Page Restrictions 0 Recycle Bin • Document Central • Updated and Expired Content • Drag and Drop Multiple File and Reporting Image Uploading • Web Traffic Statistics • Email Address Masking 0 Widget -based Layout Options • Enhanced User Interface 0 Workspace • Advanced WYSIWYG Editor • Search and Replace • Spell Checker • Style Gallery • Automatic Breadcrumbs • Connected Pa(Tes • Content Categories • Dynamic Drop Down Menus • Error 404 (Page Not Found) Handling • External Link Splash Page • Table Wizard • Undo/Redo • User Commenting • Version Control • Navigation Control • Navigation Redirect • Page Linking • Quick Links • Single -Source Publishing • Site Search (Google CSE) 8 Client's Initials Contractor's Initials • Friendly URL Redirect 0 Sitemap Generator • Business Directory • In -page Content Editing • Business Submissions • Job Application Manager • Community Spotlight • Job Posts • Dynamic Calendar System • News • Dynamic Homepage • Online Polls • Event Re-istrations • RFP Posts • Event Submssions • Rotating I lomepage Banners • Facilities Directory • Service Directory • Facilities Reservations • Single Sign On • Feedback Form • Staff Directory • Form Builder • Sticky News • Frequently Asked Questions • Weather Update • Department -Level Administration • Department -Level Navigation • Department -Level Sitemap • Audio and Video Embedding • govTrack CRM'"� • Bookmark and Share • OneClick Social NetworkingT"' • eNotification • Photo Gallery & Slideshow • Emergency Alert (site wide) • RSS FeedReaderi" • Facebook FeedReader"'\' • Twitter FeedReaderTM • Forward to a Friend • Automatic Alt -Tags • Google Translation Integration • Dynamic Font Resizing Printer Friendly Pages • Dynamic Reader Download Links • Table Accessibility Tools • Advanced Mega Menu • Responsive Design with • Weather Forecast (Yahoo!) visionMobilerm 2. Customizations 9 0 icnt's Initials Contractor's Initials The following are customizations provided in Client's project: • None. n 10 Clicnt's Initials Contractor's Initials `