HomeMy Public PortalAbout2012-2013 Agreement.tifWENS SERVICE AGREEMENT
This WENS Services Agreement (this "Agreement") is entered into by and between Inspiron Logistics LLC, an
Ohio Corporation with its principal office located at 1 South Main Street, Akron, Ohio 44308 ("Inspiron
Logistics") and Village of Biscayne with its principal office located 88 W McIntyre Street, Key Biscayne, FL 33149
("Customer"), effective as of the 21st day of December 2012 (the "Effective Date").
1. Scene 2 Services.
1.1 Services. In consideration for the payment of
fees by Customer provided for herein, during the Term,
Inspiron Logistics agrees to provide to Customer the
following services (collectively, the "Services"):
(a) Setup of a WENS Account where as
Inspiron Logistics will use the Master Administration to
plug in Customer specific account parameters;
(b) Pre -population of "Canned" Meta data
which the Customer can elect to use for testing purposes or
continue to use well into official product launch;
(c) Use of WENS Account; and
(d) Provide the Customer training for internal
personnel on the WENS Platform and how to best utilize its
functionality.
1.2 Updates. From time to time Inspiron
Logistics may deploy in its discretion updates, fixes or
solutions to problems or bugs in the Platform ("Updates").
Inspiron Logistics shall incorporate and provide the
Updates at no additional charge to Customer when and if
available.
1.3 Restrictions. Customer shall not (i)
assign, transfer, modify, create any derivative work of or
private label the Platform, or reverse assemble, decompile,
reverse engineer or attempt to derive source code or the
underlying ideas, algorithms, structure or organization of
the Platform, (ii) alter or copy, or permit a third party to
alter or copy, any part of the Platform; (iii) use the Platform
to provide service bureau, time sharing, access through a
public computer bulletin board or "shareware" distribution
process, or other similar services to third parties; or
(iv) sublicense, distribute, sell, assign, transfer, lease, rent,
disclose, or provide access to the Platform to any third
party. In no event shall Customer use or access the
Platform except as permitted hereunder.
1.4 Ownership. Inspiron Logistics is, and
shall remain, the licensee or the owner of the Platform and
any related documentation and all related and intellectual
property, including without limitation, all copyright, trade
secret, patent, trademarks and other intellectual property
rights therein and including any derivative works made
during the Term or thereafter ("Inspiron Logistics
Property"). No property or ownership right or interest in the
Inspiron Logistics Property or any part thereof is granted to
Customer by virtue of this Agreement, the rights granted
hereunder to Customer being solely contractual in nature.
Customer hereby assigns to Inspiron Logistics all of its
right, title and interest in any such Inspiron Logistics
Property. Any and all meta -data contained within the
Platform such as (i) individuals' personal information, (ii)
private contact information, (iii) system activity or (iv)
system inventory is the property of the Customer and is
subject to the Freedom of Information Act of 1996 in the
event the Customer is a public entity.
2.
2.1 Atxtrpval of Account. Inspiron
Logistics grants to Customer a worldwide right and license
during the Term to send the Content via the Platform to
Subscribers on the terms and conditions described herein.
Customer will be responsible for ensuring that all Programs
and the Content of such Account meet the requirements of
this Agreement and any additional Account requirements
that Inspiron Logistics may reasonably establish from time
to time.
2.2 Customer Responsibilities.
(a) Approvals. Customer shall be responsible
for the procurement of any and all licenses, approvals,
qualifications, permits or certificates where required in
connection with the Account.
(b) Directions. Customer shall promptly provide
Inspiron Logistics with such guidelines, provisions or other
information (collectively, "Directions") as may reasonably
be required by Inspiron Logistics from Customer in order
to perform the Services. Inspiron Logistics may rely on any
Directions provided to it by Customer and shall incur no
liability as a result thereof. Inspiron Logistics shall not be
required to follow any Directions not made or confirmed in
writing.
2.3 jemarks. Customer hereby grants
to Inspiron Logistics a non-exclusive, non -transferable,
royalty -free license to use, reproduce, distribute and display
the trademarks, service marks and logos of Customer (the
"Customer Trademarks") during the Term and solely in
connection with the performance of the Services under this
Agreement. Inspiron Logistics agrees that all uses of the
Customer Trademarks, including the goodwill and
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reputation associated therewith, will inure to the benefit of
Customer.
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3.1 L&. In consideration for the
performance of the Services, Customer shall pay Inspiron
Logistics the following fees (collectively, the "Fees"):
(a) Account Set-up Fees: For each
Account, in consideration for the set-up services provided
by Inspiron Logistics for each Account, Customer shall pay
Inspiron Logistics the fee set forth under the heading
"Account Set-up Fee" on Schedule A attached hereto.
(b) Annual Account Maintenance Fees:
For each Account, in consideration for the maintenance of
Account(s) and management of the account, for each year
during the Account Term, Customer shall pay Inspiron
Logistics the fee set forth under the heading "Annual
Account Maintenance Fee" on Schedule A attached hereto
for each account. The Annual Account Maintenance Fee
for each year shall be invoiced on an Annual basis and
payable on the first day of such year during the Account
Term with payment due prior to the start date of the
Account or the renewal date.
4.1 Ion. The term of this Agreement
commences on the Contract Term Date and continues for
one (1) year thereafter (together with any renewal term, the
"Term") as specified in Schedule A. At the end of each
year of service, this agreement will automatically renew for
an additional year unless customer provides written notice
of Termination with no less than Forty-five (45) days
notice prior to the end of that year's contract period. In the
event terms in which Inspiron Logistics is engaged with its
vendors to provide service to the Customer changes, an
addendum will be created and must require a signature to
continue the term of this agreement. In the event either
party does not agree with the addendum, this agreement
will immediately be terminated.
4.2 Termination. In addition to and as
otherwise stated herein, this Agreement may be terminated
immediately by either Party upon written notice to the other
Party if (i) the other Party files a petition in bankruptcy or
otherwise becomes subject to bankruptcy proceedings, or
makes an assignment for the benefit of its creditors; or
(ii) the other Party materially breaches its obligations under
this Agreement and fails to cure the breach within thirty
(30) days after receiving written notice of such breach.
4.3 Effect of Termination. Except for data
that is required to be retained by Recipient to comply with
applicable laws or governmental regulations, upon any
termination or expiration of this Agreement for any reason,
each Party shall promptly return the other Party's
Contidential Information or destroy it as directed by the
owner of the Confidential Information and certify its
destruction in writing within ten (10) days. Any Sections
that by their nature refer to obligations of a Party applicable
beyond the Term, shall survive the expiration or
termination of this Agreement. Upon the termination or
expiration of this Agreement, the Parties hereto agree that
each Party shall immediately cease the utilization of any
trademarks of the other.
5. �.
S.I. Confidential Information. Each party
("Recipient") acknowledges that in the course of Inspiron
Logistics performing the Services each party may have
access to certain Confidential Information of the other party
("Disclosing Party").
5.2. Duties. Recipient shall maintain the
Confidential Information as confidential, and will not use it
in any way, for itself or for any third party, except as
required to achieve the purposes of this Agreement, nor
disclose to any third party (except to Recipient's
employees, consultants, contractors, attorneys, accountants
and other advisors (collectively, "Representatives") who
have a need to know such Confidential Information for
purposes of Recipient's performance of its obligations
under this Agreement and who have been informed of and
are obligated to comply with the confidential nature of such
information and of the terms of this Agreement). Recipient
shall be responsible for any breach of this Agreement by
any of its Representatives, and agrees, at its sole expense,
to take reasonable measures to restrain its Representatives
from prohibited or unauthorized disclosure or use of any of
Disclosing Party's Confidential Information and will take
reasonable precautions to protect the confidentiality of such
information, at least as stringent as it takes to protect its
own Confidential Information, but in no case less than
reasonable care.
5.3. Exceptions. The obligations of the
Recipient specified in this Section shall not apply to the
extent any Confidential Information (i) is known to
Recipient prior to receipt from Disclosing Party other than
as a result of Recipient's breach of any legal obligation; (ii)
becomes known (independently of disclosure by Disclosing
Party) to Recipient directly or indirectly from a source
having the legal right to disclose such Confidential
Information; (iii) is or becomes publicly known, except
through a breach of this Agreement by Recipient; or (iv) is
required to be disclosed by Recipient to comply with
applicable laws or governmental regulations, provided that
Recipient gives Disclosing Party reasonable prior written
notice of such disclosure sufficient to permit Disclosing
Party to contest such disclosure and Recipient takes
reasonable and lawful actions to avoid and/or minimize the
extent of such disclosure.
5.4. Ownership of Confidential Information.
The Disclosing Party is and shall remain the exclusive
owner of Confidential Information and all intellectual
property rights therein. No license or conveyance of any
such rights to the Recipient is granted or implied under this
Agreement.
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6. j, uy: Wsrraity.
6.1 Limitation of Liability. EXCEPT AS
OTHERWISE PROVIDED IN THIS AGREEMENT,
UNDER NO CIRCUMSTANCES WILL EITHER PARTY
OR ITS RESPECTIVE AFFILIATES BE LIABLE TO
THE OTHER PARTY FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL,
PUNITIVE OR EXEMPLARY DAMAGES ARISING
FROM THE SUBJECT MATTER OF THIS
AGREEMENT, REGARDLESS OF THE TYPE OF
CLAIM AND EVEN IF THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS
OF DATA, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS. EXCEPT FOR
AMOUNTS OWED HEREUNDER AND CLAIMS
ARRISING OUT OF SECTIONS 1.3, 6, AND 8, IN NO
EVENT SHALL EITHER PARTY'S TOTAL LIABILITY
UNDER THIS AGREEMENT EXCEED AMOUNTS
RECEIVED BY INSPIRON LOGISTICS AND NOT
PAID TO CUSTOMER HEREUNDER IN THE 6
MONTH PERIOD PRIOR TO ANY CLAIM.
6.2 Warranty.
(a) Mutual Warranty. Each party hereby
represents and warrants that it (i) has the full power,
ownership interests and the right to enter into this
Agreement and to grant the rights and licenses
contemplated by this Agreement, without the need for any
consents, approvals or immunities not yet granted and
without any conflict with, breach of or default under its
articles of incorporation, bylaws or other charter documents
or any contract by which it is bound and (ii) has all required
licenses, consents, approvals and permits from any person
necessary to perform its obligations under this Agreement.
(b) Inspiron Logistics Warranty. Inspiron
Logistics hereby represents and warrants that (1) it shall
perform all Services in a good and workmanlike manner.
The foregoing shall not be construed as a warranty that the
Platform of Services will function without error.
(c) Exclusive Remedies. For any breach of
the warranties set forth in Section 6.2(b), Customer's sole
and exclusive remedy and Inspiron Logistics' entire
liability shall be, at Customer's discretion, either: (a)
correct the error that caused the breach of warranty; (b) re -
perform the Services; or (c) in the event that Inspiron
Logistics is unable to cure such breach, termination of this
Agreement and return of the fees paid for such
nonconforming Services.
7. Carrier Resitrictioaa/Regriremeats.
7.1 General Carrier Restrictions. Customer
acknowledges and agrees that (i) one or more Carriers may
obligate Inspiron Logistics to require certain commitments
and representations from third parties such as the Customer
seeking to use such Carriers' services and/or equipment,
(ii) Inspiron Logistics may be required to deliver and obtain
agreement to terms of use of the Carriers' services and/or
one or more Carriers' services or equipment from
Subscribers, and/or (iii) certain Carriers may place
limitations on the type, length, maximum rate of message
flow, or other characteristics of Messages that such Carriers
will agree to handle at a given time. Inspiron Logistics will
provide written notice to Customer of any Carrier terms
(including updates thereof from time to time if required by
Carriers) that Inspiron Logistics is obligated to require
Customer to acknowledge and comply with. Customer will
promptly notify Inspiron Logistics if Customer determines
that Customer is unwilling to comply or cannot comply
with or authorize or enable Inspiron Logistics to comply
with such Carrier's then -current requirements. Customer
acknowledges that such noncompliance may result in
Inspiron Logistics suspension of its performance of the
Services under this Agreement with respect to one or more
Carriers or Content.
7.2 Message Blocking. Customer
acknowledges that Carriers reserve the right to investigate
any Subscriber complaints alleging a violation by Inspiron
Logistics or its content providers (such as the Customer) of
a Carrier agreement or a violation of requirements imposed
by Carriers on Inspiron Logistics and/or its content
providers. Customer acknowledges that if a Carrier
reasonably believes that Inspiron Logistics has violated
such requirements, Carrier may refuse to transmit Messages
and may suspend or remove Inspiron Logistics' access to
the Carrier network. If Carriers notify Inspiron Logistics of
any alleged violation, and Inspiron Logistics does not
promptly remedy such violation (for example, by denying
access to a Subscriber sending inappropriate messages to
other Subscribers), the applicable Carrier may also
terminate its agreement concerning access of the Inspiron
Logistics Service to such Carriers network. Customer
further acknowledges that if a Carrier receives a complaint
from a customer or a governmental or law enforcement
agency ("Outside Complaint") claiming that any Messages
are unlawful, obscene, racially or ethnically offensive or
depict sexually explicit materials or infringe on the
intellectual property rights of others, the Carrier may notify
Inspiron Logistics in writing of such Outside Complaint
and, in addition, may suspend such Carrier's connection
with Inspiron Logistics until such time as the complaint is
remedied or otherwise resolved. Inspiron Logistics has
agreed to remedy any such complaints as promptly as is
commercially reasonable. Customer acknowledges that
such remedies may include without limitation removing the
recipient of mobile -terminated messages from various
participant lists or blocking certain access to the Service.
Customer acknowledges that the obligations described in
this Section may prevent Inspiron Logistics from
performing under this Agreement with respect to such
Carriers.
7.3 Damage to Carrier Property. Customer
will not use or assist others to use Carrier communications
services (or any equipment or network connections used
with such services) in any way that damages Carrier
property or interferes with or disrupts a Carrier network or
subscribers.
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7.4 privacy. Customer acknowledges that
Carriers cannot guarantee the privacy of Messages, and
accordingly Customer agrees that neither Inspiron Logistics
nor the Carriers will be liable to Customer or any other
party for any lack of privacy or security experienced when
using the Inspiron Logistics Service. Customer also
acknowledges that to the extent permitted by law, Carriers
have the right to intercept and disclose any transmissions
over their facilities in order to protect their rights or
property, including without limitation, to protect the
efficient operation of their networks or to comply with
governmental authorities.
7.5 Carrier Charges. Customer
acknowledges that for any Message originated by a Carrier
Subscriber and transmitted to Inspiron Logistics or another
Carrier Subscriber, the Carrier Subscriber will be charged
at the text messaging rate reflected in their rate plan.
7.6 No liability for actions by Carriers.
Customer acknowledges and agrees that, with respect to
Carrier communications services: (a) one hundred percent
of the Messages may not be delivered; and (b) neither
Inspiron Logistics nor any Carrier will be liable to
Customer for any Messages deleted or not delivered,
regardless of the reason for deletion or non -delivery
including, without limitation, message processing or
transmission errors. Neither Inspiron Logistics nor any
Carrier makes any representations or warranties regarding
the quality, reliability, timeliness or security of the carrier
communications services or that they will be error -free,
uninterrupted, and free from unauthorized access or that all
messages will be delivered.
8. Miscellaoenrs.
8.1 Technical Terms. Each word and
abbreviation which has a technical or trade meaning is used
in this Agreement in accordance with such recognized
meaning.
8.2 Currency. Unless otherwise stated, all
dollar amounts referred to in this Agreement are in United
States dollars.
8.3 Remedies Cumulative. Unless
expressly stated herein, all rights and remedies of a Party
under this Agreement are in addition to the Party's other
rights and remedies and are cumulative, not alternative.
8.4 Governing Law: Jurisdiction and
Venug. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio
without taking into account its principles on conflicts of
law. The Parties irrevocably consent to the exclusive
jurisdiction and venue of the federal and state courts
located in the State of Ohio for any litigation arising under
this Agreement. A Party seeking a remedy or relief
(including injunctive or other similar equitable relief) shall
not be required to post a bond or other security for costs as
a foreign plaintiff or defendant, as the case may be, in any
jurisdiction or venue in which the mitigation may arise
under this Agreement.
8.5 Notices. All notices required or desired
to be delivered or served pursuant to this Agreement may
be delivered and served by personal delivery or by pre-
paid, first class mail addressed to the intended recipient
Party at their respective addresses first written above, or at
such other address as may have been designated in
accordance with the provisions of this paragraph.
8.6 No Partnership. Nothing in this
Agreement is intended or will be construed as creating a
relationship of joint venture, partnership or employment
between the Parties hereto and each of the Parties
specifically acknowledges and agrees that their relationship
is and shall be solely as independent contractors. Neither
Party shall hold itself out contrary to the terms of this
Agreement, and neither Party shall become liable for the
representation, act or omission of the other Party contrary
to the provisions hereof
8.7 No Waiver. A waiver by either of the
Parties of any term or condition of this Agreement in any
particular instance shall not be deemed or construed to be a
waiver of such term or condition for the future or any
subsequent breach thereof whether or not of the same or
similar nature. No course of dealings or continuing conduct
of either Party shall constitute a waiver of or amendment to
any provision hereof. All remedies, rights, undertakings,
obligations and agreements contained in this Agreement
shall be cumulative and none of them shall be in limitation
of any other remedy, right, undertaking, obligation or
agreement of either of the Parties.
8.8 Severance. If any provision of this
Agreement, or part thereof, is held by a court of competent
jurisdiction to be void or unenforceable it shall be deemed
to have been severed from this Agreement and the
remainder of the provisions of this Agreement shall
thereafter continue in full force and effect to the extent
permitted by law.
8.9 Entire Agreement. This Agreement
contains the entire agreement between the Parties with
respect to the matters contained herein and supersedes all
previous discussions, negotiations, understandings,
expectations, representations and agreements between the
Parties. There are no additional or collateral
representations, warranties, terms, conditions, expectations
or agreements between the Parties regarding the subject
matter hereof, except those expressly set forth herein.
8.10 Amendment. No modification,
alteration or amendment of this Agreement shall be valid or
binding unless in writing and signed by both Parties.
8.11 Assignment. Subject to the following
sentence, neither Party may assign its rights and obligations
under or transfer any of its interest in this Agreement,
without the prior consent of the other Party
Notwithstanding the foregoing, either Party may assign this
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Agreement or transfer any of its interest to any affiliate of
such Party, to a purchaser of all or substantially all of such
Party's assets, to a successor in interest of such Party or as
part of a corporate reorganization, consolidation or merger.
This Agreement and each of the provisions hereof shall
inure to the benefit of and be binding upon the Parties and
their respective successors, administrators and permitted
assigns.
8.12 Further Assurances. The Parties agree
to do and perform and cause to be done and performed such
further and other acts and things as may be reasonably
necessary or desirable in order to give full force and effect
to this Agreement.
8.13 Counterparts. This Agreement may be
executed in any number of counterparts, each of which
when executed and delivered is an original but all of which
taken together constitute one and the same instrument.
Facsimile signatures shall be considered original
signatures.
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IN WITNESS WHEREOF, the Parties hereto, by their duly authorized
representatives, have executed this Agreement as of the Effective Date.
INSPIRON LOGISTICS CORP. CUSTOMER
Village of Key Biscayne
By:
Name: Scott Dealing Nam :cm C C < ber1
Title: President
Title: VI 11 e- HCknGC\e
Irisplran loc9istics-
Leveraging Mo Ile Technologies ass
SCHEDULE A
1. Contract Tenn Date:
Year 1: 12/21/2012 —12/20/2013
2. Account Set-up Fee: (waived)
3. Total Combined Account Maintenance Fee and Payment Due Dates
Year 1: $ 4,850.00 due 1/1/2013
• Package incNrdes f0k voice, SIMS, entail, desktop alerts and paying
The contents of this material are confidential and proprietary Inspiron Logistics LLC and may not be reproduced,
published or disclosed to others without the prior written consent of Inspiron Logistics LLC.
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