HomeMy WebLinkAbout2008-431
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RESOLUTION NO. 2008-431
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND
PURCHASE ORDER TO GOVERNMENT OUTREACH FOR THE SUBSCRIPTION
TO THE CITIZEN RELATIONSHIP MANAGEMENT SOFTWARE SERVICE.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
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SECTION I: That the Director of Finance or his/her designee is hereby authorized to
issue an Annual Purchase Order with multiple renewal options, to Government Outreach in an
amount not to exceed $24,300.00 for Fiscal Year 2008/2009 for implementation and
subscription costs for the Code Enforcement, Single Family Rental and Weed Abatement
Management software service. The Purchase Order shall reference the number of this resolution
and shall read, "GO Enforce, FY 2008/2009, not to exceed $24,300.00," and shall incorporate
the terms and conditions of this Resolution including the attached Agreement. The annual cost
for the GOEnforce System software subscription will be $23,400.00 for year's two and three.
Future year renewal options shall be contingent upon funds being approved in the City's budget
for this service.
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SECTION 2: That the City Manager of the City of San Bernardino is hereby authorized
to execute on behalf of said City an Agreement between the City of San Bernardino and
Government Outreach, a copy of which is attached hereto and incorporated herein.
SECTION 3: This purchase is exempt from the formal contract procedures of Section
3.04,010 of the Municipal Code, pursuant to Section 3,04.010, B3 of said Code, "Purchases
approved by the Mayor and Common Council".
SECTION 4: The authorization to execute the above-referenced Agreement and issue
the above-referenced Purchase Order is rescinded if not executedlissued within sixty (60) days
of the passage of this Resolution.
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2008-431
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND
PURCHASE ORDER TO GOVERNMENT OUTREACH FOR THE SUBSCRIPTION TO
THE CITIZEN RELATIONSHIP MANGEMENT SOFTWARE SERVICE.
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I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a regular meeting thereof, held on the 17th
day of November, 2008, by the following vote, to wit:
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Ayes
Nays
Abstain
Absent
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~~/;;,~
Radie G. Clark, City Clerk
The foregoing resolution is hereby approved this / P flf day of November 2008,
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23 Approved as to form:
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2008-431
VENDOR SERVICE AGREEMENT
This Vendor Service Agreement is entered into this 17th day of November 2008, by and
between Government Outreach ("Vendor") and the City of San
Bernardino ("City" or "San Bernardino").
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WITNESSETH:
WHEREAS, the City of San Bernardino has determined that it is advantageous and in
the best interest of the City to contract for the subscription to the "Government Outreach-
GOEnforce" Code Enforcement Management software service; and
WHEREAS, the City did solicit and accept quotes from available vendors for a Code
Enforcement management software service.
NOW, THEREFORE, the parties hereto agree as follows:
SCOPE OF SERVICES.
For the remuneration stipulated, City hereby engages the services of Vendor to provide
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those products and services as set forth on Exhibit "A" and Exhibit "C," attached hereto and
incorporated herein.
2. COMPENSATION AND EXPENSES.
2.1 Compensation. For the services delineated above, the City, upon presentation of
an invoice, shall pay the Vendor in accordance with the fee schedule set forth in Exhibit "D,"
attached hereto and incorporated herein by this reference (the "Fee Schedule"). Vendor's
compensation shall in no case exceed Twenty Four Thousand Three Hundred Dollars
($24,300.00) for the remainder of the 2008-2009 fiscal year (November, 2008 through June 30,
2009) and Twenty Three Thousand Four Hundred Dollars ($23,400.00) for the second (2nd) and
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third (3rd) fiscal years. For the next two (2) years following the first three (3) years, an increase
in subscription fees, if any, shall be adjusted in conformance with the United States Department
of Labor, Bureau of Labor Statistics, Consumer Prices Index for the Los Angeles-Riverside-
Orange County area, All Urban Consumers. Such increase, if any, shall not exceed five percent
(5%) per annum.
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Future Year Renewals. Future year renewal options shall be contingent upon
funds being approved in the City's budget for this service.
2.3 Additional Services. No other expenditures made by Vendor shall be
reimbursed by City.
2.4. Records and Audits. Records of Vendor's services relating to this Agreement
shall be maintained in accordance with generally recognized accounting principles and shall be
made available to City for inspection and/or audit at mutually convenient times for a period of
three (3) years from the Effective Date.
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TERM; TERMINATION.
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The term of this Agreement shall be for a period of one year. This agreement shall
continue thereafter on a yearly basis unless terminated by either party with thirty (30) days
written notice. Except as otherwise provided in an Order Form, this Agreement becomes
effective on the date the Agreement is accepted. Vendor reserves the right, in its discretion, to
suspend or terminate this Agreement or City's password, account, access to or use of to the
GOEnforce Service if any payment on City's account becomes past due by more than 90 days,
Upon termination of this Agreement for any reason, City's right to access or use City Data
through the GOEnforce Service immediately ceases. Upon termination of this Agreement,
Vendor will supply to City a file of the City Data then in its possession. After a period of 60
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days after such termination, Vendor shall have the right to delete the City Data on its system
without obligation to maintain any City Data.
This Agreement may be terminated at any time by thirty (30) days written notice by
either party. The terms of this Agreement shall remain in force unless mutually amended.
In the event of termination of this Agreement, all documents prepared by Vendor in its
performance of this Agreement including, but not limited to, finished or unfinished design,
development and construction documents, data studies, drawings, maps and reports, shall be
delivered to the City within ten (10) days of delivery of termination notice to Vendor, at no cost
to City. Any use of uncompleted documents without specific written authorization from
Vendor shall be at City's sole risk and without liability or legal expense to Vendor.
4. LICENSE AGREEMENT.
City agrees to the terms of the GOEnforce Software Services Agreement attached as
Exhibit "C". In the event of an inconsistency in this Agreement and any of the attached
Exhibits, the terms set forth in this Agreement shall prevail.
5. INDEMNITY.
City agrees to indemnifY and hold harmless Vendor, its officers, agents and volunteers
from any and all claims, actions, losses, damages and/or liability resulting from City's
negligent acts or omissions arising from the City's performance of its obligations under the
Agreement.
Vendor agrees to indemnifY and hold harmless the City, its officers, agents, and
volunteers from any and all claims, actions, losses, damages and/or liability resulting from
Vendor's negligent acts or omissions arising from the Vendor's performance of its obligations
under the Agreement.
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In the event the City and/or the Vendor is found to be comparatively at fault for any
claim, action, loss, or damage which results from their respective obligations under the
Agreement, the City and/or Vendor shall indemnifY the other to the extent of this comparative
fault.
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INSURANCE.
While not restricting or limiting the foregoing, during the tenn of this Agreement,
Vendor shall maintain in effect policies of comprehensive public, general and automobile
liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory
workers' compensation coverage if required by law, and shall file copies of said policies with
the City's Risk Manager prior to undertaking any work under this Agreement. City shall be set
forth as an additional named insured in each policy of insurance provided hereunder. The
Certificate of Insurance furnished to the City shall require the insurer to notifY City of any
change or tennination in the policy.
7. NON-DISCRIMINATION.
In the perfonnance of this Agreement and in the hiring and recruitment of employees,
Vendor shall not engage in, nor pennit its officers, employees or agents to engage in,
discrimination in employment of persons because of their race, religion, color, national origin,
ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or
sexual orientation, or any other status protected by law, except as pennitted pursuant to Section
12940 of the California Government Code.
8. INDEPENDENT CONTRACTOR.
Vendor shall perfonn work tasks provided by this Agreement, but for all intents and
purposes Vendor shall be an independent contractor and not an agent or employee of the City.
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Vendor shall secure, at its expense, and be responsible for any and all payment ofIncome Tax,
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Social Security, State Disability Insurance Compensation, Unemployment Compensation, and
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other payroll deductions for Vendor and its officers, agents, and employees, and all business
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licenses, if any are required, in connection with the services to be performed hereunder.
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BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS.
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Vendor warrants that it possesses or shall obtain, and maintain a business registration
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certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits,
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qualifications, insurance and approval of whatever nature that are legally required of Vendor to
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practice its business or profession. If the City requires vendor to obtain any certifications or
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licenses in order to provide the GOEnforce software service or any other service to the city, any
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fees required will be waived by City or added to fees due to Government Outreach.
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10. NOTICES.
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Any notices to be given pursuant to this Agreement shall be deposited with the United States
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Postal Service, postage prepaid and addressed as follows:
18 TO THE CITY: Code Enforcement Director
19 City of San Bernardino
201-B North "E" Street, Suite 201
20 San Bernardino, CA 92401
Telephone: (909) 384-5205
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22 TO THE VENDOR: Kendall Smith
President
23 Government Outreach
2943 Victoria Meadow, Ct.
24 Pleasanton, CA 94566
25 Telephone: (925) 292-2768
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11. ATTORNEYS' FEES
In the event that litigation is brought by any party in connection with this Agreement,
the prevailing party shall be entitled to recover from the opposing party all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of
its rights or remedies hereunder or the enforcement of any of the terms, conditions or
provisions hereof. The costs, salary and expenses of the City Attorney and members of his
office in enforcing this Agreement on behalf of the City shall be considered as "attorneys' fees"
for the purposes of this paragraph.
12. ASSIGNMENT.
Vendor shall not voluntarily or by operation of law assign, transfer, sublet or encumber
all or any part of the Vendor's interest in this Agreement without City's prior written consent.
Any attempted assignment, transfer, subletting or encumbrance shall be void and shall
constitute a breach of this Agreement and cause for the termination of this Agreement.
Regardless of City's consent, no subletting or assignment shall release Vendor of Vendor's
obligation to perform all other obligations to be performed by Vendor hereunder for the term of
this Agreement.
13. VENUE.
The parties hereto agree that all actions or proceedings arising in connection with this
Agreement shall be tried and litigated either in the State courts located in the County of San
Bernardino, State of California or the U.S. District Court for the Central District of California,
Riverside Division. The aforementioned choice of venue is intended by the parties to be
mandatory and not permissive in nature.
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GOVERNING LAW.
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This Agreement shall be governed by the laws of the State of California.
SUCCESSORS AND ASSIGNS.
This Agreement shall be binding on and inure to the benefit of the parties to this
Agreement and their respective heirs, representatives, successors, and assigns.
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16. HEADINGS.
The subject headings of the sections of this Agreement are included for the purposes of
convenience only and shall not affect the construction or the interpretation of any of its
provIsIOns.
17. SEVERABILITY.
If any provision of this Agreement is determined by a court of competent jurisdiction to
be invalid or unenforceable for any reason, such determination shall not affect the validity or
enforceability of the remaining terms and provisions hereof or of the offending provision in any
other circumstance, and the remaining provisions of this Agreement shall remain in full force
and effect.
18. ENTIRE AGREEMENT; MODIFICATION.
This Agreement constitutes the entire agreement and the understanding between the
parties, and supersedes any prior agreements and understandings relating to the subject manner
of this Agreement. This Agreement may be modified or amended only by a written instrument
executed by all parties to this Agreement.
19. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original. All counterparts shall be construed together and shall constitute one
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CORPORATE AUTHORITY.
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The persons executing this Agreement on behalf of the parties hereto warrant that they
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are duly authorized to execute this Agreement on behalf of said parties and that by doing so,
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the parties hereto are formally bound to the provisions of this Agreement.
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IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day
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and date set forth below.
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Dated: 1)-'-;
,2008
GOVERNMENT OUTREACH
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By: /.(ati~11 SM:-(''''
Its: f~~
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Dated /1-::>-<;;'
,2008
r ERNARDINO
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By:
Mark
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Approved as to Form:
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. Penman, City Attorney
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EXHIBIT A
Software Service, Setup, Configuration and Intcgration
Vendor will provide a subscription to the "Government Outreach GOEnforce Code
Enforcement Software Service" - a code enforcement software system with rental and weed
abatement modules maintained by Vendor and housed on a computer server procured by Vendor
for this purpose. Vendor shall provide City access to this service via the internet. Vendor is not
responsible for maintaining City's internet connection to the hosted service.
The GOEnforce Code Enforcement Software requires infonnation from the customer for
setup and configuration as well as participation from the customer in assisting and providing data
to Vendor for the setup and configuration of the software.
Vendor will provide the following items with the GOEnforce Software Service.
Project Management - Vendor will provide Project Management, specifically the development
of a project plan with identified City employees to ensure the many facets of deploying the
Government Outreach Code Enforcement Software Service are done in a timely and coordinated
fashion. City will make appropriate staff available to Vendor for the purposes of obtaining the
necessary infonnation and data required to setup and configure the system.
Training - Vendor will provide 2 types of training. I) for users of the system that process and
create code enforcement cases and 2) for users that are identified as administrators. Vendor will
provide up to one day of on-site training in use of the system. Web based training, if needed, will
be billed at a standard rate of $1 SO per hour. Typical web based training sessions take two (2)
hours.
Reports and Printing - Vendor will develop up to 5 additional customized reports in addition to
the standard 16 reports available. Additional reports beyond the aforementioned will be billed at
a standard rate of $1 SO per hour. Additional reports typically take one (1) hour to produce,
Letter Generation - Vendor will work with City to develop up to IS letter templates for code
enforcement use in the GOEnforce product. Additional letters will be billed at a standard rate
of $1 SO per hour. Additional letters typically take one (1) hour to produce.
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Parcel Data Importation - Vendor will develop an interface to import City's parcel data for the
purposes of owner and APN lookups. City is responsible for obtaining parcel data from County
or other source in an acceptable electronic format for the purposes of importing.
Water Database Access - Vendor will work with City to access name and address information
("water database") for "additional" address information for property by getting information
through City GIS system. City is responsible for providing all necessary water database data
through the GIS system.
Municipal Code - Vendor will import municipal code and other relevant codes from electronic
format to be provided by City. City must identifY codes' with Topics for the purposes of
classification and reporting, Imported municipal code is to be used in the letters and is a
summary of the full code. City is responsible for providing the summarized code to Vendor in an
acceptable electronic format. _
Rental Inspection - Vendor will work with City to configure system for single family Rental
Inspections. This process has yet to be clearly defined by City. Since the process is not clearly
defined at this time, because City is in intial stages of developing its program, Vendor's scope of
work will be limited to 20 hours.
Weed Abatement - Vendor will work with City to configure system for Weed Abatement case
tracking. This process has yet to be clearly defined by City. Since the process is not clearly
defined at this time, Vendor's scope of work will be limited to 20 hours.
GIS Integration - Vendor will integrate to City's ESRI system provided it has an acceptable
ArcIMS interface and is made available to Vendor for access. City understands that some
additional queries may need to be developed to support access by Vendor's application. This
integration is included provided the effort does not exceed 20 hours effort by Vendor personnel.
GOEnforce Functionality
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Some of the main features accessible to City in GOEnforce software service are listed below.
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This is not a complete list, however, it highlights some of the most important and prominent
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functions:
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o Centralized case management and access of cases through browser
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o Case history of letters and photos
o Automatic parcel lookup of owner information from parcel data provided by City
o Case counts and alerts
o Inspection reports for past due items
o Letter generation for case progress
o Batch printing of letters generated
o Searchable history of issues
Hosting, Support, and Maintenance
The monthly service fee includes:
. A secure and reliable hosted system
o Ongoing maintenance
o Unlimited technical support
o System upgrades and enhancements
Technical support is available via telephone, email, and online. Vendor guarantees a 24-hour
response time, though most issues are answered within a few hours during standard business
hours of 8 AM to 5 PM.
As part of the monthly service, new system features and enhancements added to the GOEnforce
software are provided at no additional cost. The product is designed so that new features can be
selectively accepted by the City at a time that is convenient.
Because the software is browser-based and hosted on a remote server, all updates are performed
on Vendor servers. There is no need for the City to update any software or hardware to obtain
the latest software.
Backups
Vendor maintains synchronized servers at different facilities. In the event that one server fails or
has network connectivity issues, the backup will take over. To protect data against accidental
loss, database backups are performed to a separate server.
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All servers operate from secure facilities, each of which includes:
o Keycard and biometric scan required for physical access
o Backup power generators
o Redundant fiber optic connectivity
. Fire suppression systems
o Staffing 24/7 by certified systems administrators and network engineers
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Exhibit B
Software Order Form
The following specifY the costs and payment terms for the GOEnforce software service
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which includes all items as described in Exhibit A.
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Fees - Vendor's fee for this Agreement is Not to Exceed $24,300 for the remainder of the 2008-
2009 fiscal year and Not to Exceed $23,400 per year for the subsequent 2 years of subscription to
the "Government Outreach GOEnforce Software Service." For the next two (2) years following
the first three (3) years, an increase in subscription fees, if any, shall be adjusted in conformance
with the United States Department of Labor, Bureau of Labor Statistics, Consumer Prices Index
for the Los Angeles-Riverside-Orange County area, All Urban Consumers. Such increase shall
not exceed five percent (5%) per annum. Said System Costs outlines the setup and
implementation costs as well as the subscription license fees. Additional services performed by
Vendor not included in this agreement, will be billed at a time and expense basis at $150 per
hour. Additional services performed by Vendor must be approved and in writing by City prior to
commencement of such work.
Schedule of Payments - Vendor will invoice City according to the following schedule:
Schedule of Payments - Government Outreach will invoice Customer based upon the following
schedule:
o 50% of implementation costs at the commencement of the project
o 50% of implementation cost upon completion of training
Subscription fees will begin upon commencement of operation of the system. Subscription fees
are always paid in advance and are billed annually prior to the expiration of the previous
subscription period.
License - The City will be allowed a license of up to 50 users of the GOEnforce software. City
is allowed to have as many read-only users for GOEnforce case access as City wants. There is n
pro-rating oflicense fees for user account access ofless than 50 users.
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Exhibit "C"
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Government Outreach GOEnforce Software Service Agreement
1. License Grants. Subject to the terms and conditions of this Agreement, Government Outreach
grants to Customer during the Term of this Agreement the nontransferable, nonexclusive
worldwide right to permit Users to (a) use the GOEnforce Service, (b) print and display the
Content, and (c) use the GOEnforce Materials solely in connection with the GOEnforce Service,
all solely for Customer's own internal business operations, provided such operations shall not
include commercial time-sharing, rental, outsourcing or service bureau use. The rights granted to
Customer in this Agreement are subject to all of the following agreements and restrictions: (i)
Customer shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource,
disclose or otherwise cornmercially exploit or make the GOEnforce Service or the GOEnforce
Materials available to any third party other than the authorized Users of the City of San
Bernardino, the citizens of the City of San Bernardino and contractors for the City of San
Bernardino; (ii) Customer shall not modify, make derivative works of, disassemble, reverse
compile, or reverse engineer any part ofthe GOEnforce Service or GOEnforce Materials or
access the GOEnforce Service or GOEnforce Materials in order to build a similar or competitive
product or service; (iii) Customer shall not disclose any review of the Government Outreach
Software or GOEnforce Service, including but not limited to the results of any performance tests,
to any third party without Government Outreach's prior written approval except where required
by the Public Records Act; (iv) Customer acknowledges and agrees that Government Outreach 0
its Third Party Providers shall own all right, title and interest in and to all intellectual property
rights (including all unpatented inventions, patent applications, patents, design rights, copyrights,
trademarks, service marks, trade names, know-how and other trade secret rights, and all other
intellectual property rights, derivatives or improvements thereof) in the GOEnforce Service and
the GOEnforce Materials and any suggestions, enhancement requests, feedback,
recommendations or other information provided by Customer or any other party relating to the
GOEnforce Service or the GOEnforce Materials; (v) Customer does not acquire any rights in the
GOEnforce Service or GOEnforce Materials, express or implied, other than those expressly
granted in this Agreement and all rights not expressly granted to Customer are reserved by
Government Outreach; and (vi) this Agreement is not a sale and does not convey any rights of
ownership in or related to the GOEnforce Service or GOEnforce Materials to Customer.
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2. Licenses from Customer. Subject to the terms and conditions of this Agreement, Customer
grants to Government Outreach and its Third Party Providers the non-exclusive, worldwide right
to use, copy, transmit and display (a) Customer Data solely to the extent necessary to provide the
GOEnforce Service and GOEnforce Materials to Customer, and (b) any trademarks that
Customer provides Government Outreach for the purpose of including them in Customer's user
interface of the GOEnforce Service ("Customer Trademarks"). Customer shall have sole
responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and
copyright of all Customer Data and information regarding Customer and Customer's Users.
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3. Third Party Providers. All materials and services provided through the GOEnforce Service,
as well as any GOEnforce Materials, including but not limited to information, documents,
products, logos, graphics, sounds, images, software, and consulting, training or technical support
services are provided either by Government Outreach or by its respective third party
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manufacturers, authors, developers, vendors, and service providers ("Third Party Providers") and
are the copyrighted work of Government Outreach and/or its Third Party Providers. Except
where expressly provided otherwise by Government Outreach, nothing in the GOEnforce
Service, the GOEnforce Materials, or the Agreement shall be construed to confer any license to
any of Government Outreach's or any Third Party Provider's intellectual property rights, whether
by estoppel, implication, or otherwise. Government Outreach reserves the right to subcontract
any or all services provided hereunder to third parties.
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4. Representations & Warranties. Each party represents and warrants that it has the power and
authority to enter into this Agreement. Government Outreach represents and warrants that (a) it
will provide the GOEnforce Service in a manner consistent with generally accepted industry
standards, (b) the GOEnforce Service will perfonn substantially in accordance with its online
documentation under nonnal use and circumstances, and (c) the Services will be perfonned in a
manner consistent with generally accepted industry standards.
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5. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN
SECTION 4 ABOVE, GOVERNMENT OUTREACH AND ITS THIRD PARTY PROVIDERS
HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES,
GUARANTIES, AND CONDITIONS WITH REGARD TO THE GOENFORCE SERVICE,
THE GOENFORCE MATERIALS, AND THE SERVICES INCLUDING BUT NOT LIMITED
TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE AND NON-INFRINGEMENT, AND QUALITY OF SERVICE, EXCEPT TO THE
EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
GOVERNMENT OUTREACH AND ITS THIRD PARTY PROVIDERS MAKE NO
REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY,
AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR
COMPLETENESS OF THE GOENFORCE SERVICE, THE GOENFORCE MATERIALS, OR
THE SERVICES OR THE RESULTS CUSTOMER MA Y OBTAIN BY USING THE
GOENFORCE SERVICE, THE GOENFORCE MATERIALS, OR THE SERVICES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GOVERNMENT
OUTREACH AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR W ARRAN
THAT (A) THE GOENFORCE SERVICE OR GOENFORCE MATERIALS WILL MEET
CUSTOMER'S REQUIREMENTS; (B) THE GOENFORCE SERVICE OR GOENFORCE
MATERIALS WILL OPERATE IN COMBINATION WITH OTHER HARDWARE,
SOFTWARE, SYSTEMS OR DATA; (C) GOVERNMENT OUTREACH AND ITS THIRD
PARTY PROVIDERS WILL BE ABLE TO PREVENT THIRD PARTIES FROM ACCESSIN
CUSTOMER DATA OR CUSTOMER'S CONFIDENTIAL INFORMATION, (D) THE
OPERATION OR USE OF THE GOENFORCE SERVICE OR GOENFORCE MATERIALS
WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; (E) ANY ERRORS
WILL BE CORRECTED; (F) ANY STORED CUSTOMER DATA WILL BE ACCURATE OR
RELIABLE, (G) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR
OTHER MATERIAL CUSTOMER PURCHASES OR OBTAINS THROUGH THE
GOENFORCE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS; OR (H) THE
GOENFORCE SERVICE, GOENFORCE MATERIALS, OR THE SYSTEMS THAT MAKE
THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL
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2008-431
1 COMPONENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER GOVERNMENT
OUTREACH NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF
2 DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND
3 THAT THE GOENFORCE SERVICE AND GOENFORCE MATERIALS MAYBE SUBJECT
TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF
4 SUCH COMMUNICATIONS FACILITIES. GOVERNMENT OUTREACH IS NOT
RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE
5 RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED
6 OTHERWISE BY GOVERNMENT OUTREACH, THE GOENFORCE SERVICE,
GOENFORCE MATERIALS, AND ALL CONTENT, INCLUDING BUT NOT LIMITED TO
7 THE GOVERNMENT OUTREACH SOFTWARE, ARE PROVIDED TO CUSTOMER ON A
8 "AS IS" BASIS, AND ARE FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL
RESPONSIBILITY FOR DETERMINING WHETHER THE GOENFORCE SERVICE,
9 GOENFORCE MATERIALS AND ALL CONTENT IS ACCURATE OR SUFFICIENT FOR
CUSTOMER'S PURPOSES.
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6. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF
EITHER PARTY OR THE THIRD PARTY PROVIDERS EXCEED THE INSURANCE
POLICY LIMITS OF GOVERNMENT OUTREACH. IN NO EVENT SHALL EITHER
PARTY OR THE THIRD PARTY PROVIDERS BE LIABLE TO ANYONE FOR ANY
INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQJENTIAL
DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE
OR OTHER ECONOMIC ADV ANT AGE, ARISING OUT OF, OR IN ANY WAY
15 CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE
OR INABILITY TO USE THE GOENFORCE SERVICE, OR FOR ANY INTERRUPTION,
16 INACCURACY, ERROR OR OMISSION IN THE GOENFORCE SERVICE, THE
GOENFORCE MATERIALS, OR THE SERVICES, REGARDLESS OF CAUSE, WHETHER
IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION,
EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD
PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 6
SHALL NOT APPLY IN THE EVENT OF CUSTOMER'S BREACH OF SECTION 1, TO
EITHER PARTY'S INDEMNITY OBLIGATION; SET FORTH IN SECTION 7 BELOW, OR
IN THE EVENT OF EITHER PARTY'S BREACH OF SECTION 8 BELOW. Certain states
and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for
22 incidental or consequential damages, so the exclusions set forth above may not apply to
23 Customer.
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24 7. Indemnities. Customer shall defend and indemnify Government Outreach and its Third Party
Providers against any and all claims, costs, damages, losses, liabilities and expenses (including
25 attorneys' fees and costS) finally awarded against Government Outreach and its Third Party
26 Providers by a court of competent jurisdiction arising out of or in connection with a claim by a
third party (i) alleging that the Customer Data or the Customer Trademarks, or any use thereof,
27 infringes the rights of, or has caused harm to, a third party, or (ii) arising out of Customer's
breach of Section 9; provided that Government Outreach and/or its Third Party Providers (i)
28 promptly give written notice of the claim to Customer; (ii) give Customer sole control of the
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2008-431
1
defense and related settlement negotiations; (iii) provide to Customer, at Customer's request and
expense, all available information and assistance necessary to perform Customer's obligations
under this paragraph. Government Outreach shall defend and indemnifY Customer against any
and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and
costs) finally awarded against Customer by a court of competent jurisdiction arising out of or in
connection with a claim by a third party alleging that the Government Outreach Software directly
infringes a patent, copyright, or trademark or misappropriates a trade secret of a third party;
provided that Customer (i) promptly give written notice of the claim to Government Outreach;
(ii) give Government Outreach sole control of the defense and related settlement negotiations;
(iii) provide to Government Outreach, at Government Outreach's request and expense, all
available information and assistance necessary to perform Government Outreach's obligations
under this paragraph. Government Outreach shall have no indemnification obligation or other
liability for any claim of infringement arising from (a) use ofthe Government Outreach Software
other than in accordance with this Agreement; (b) the combination of the Government Outreach
Software with any other products, service, hardware or business processes); or (c) any Content or
third party software products. If the Government Outreach Software or any portion of the
GOEnforce Service is held to infringe or may be infringing, Government Outreach shall have the
option, at its expense, to (x) replace or modifY the Government Outreach Software or GOEnforce
Service to be non-infringing, (y) obtain a license for Customer to continue using the Government
Outreach Software or GOEnforce Service, or (z) terminate the GOEnforce Service or this
Agreement and refund any prepaid unused fees for the GO Enforce Service. This Section 7 states
Government Outreach's entire liability and Customer's exclusive remedy for any claim of
infringement.
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8. Confidential Information. Each party may have access to information that is confidential to
the other party ("Confidential Information"). Confidential Information shall include any
information that is clearly identified in writing at the time of disclosure as confidential as well as
any information that, based on the circumstances under which it was disclosed, a reasonable
person would believe to be confidential. Customer's Confidential Information shall include, but
not be limited to, Customer Data. A party's Confidential Information shall not include
information that (i) is or becomes a part of the public domain through no act or omission of the
other party; (ii) was in the other party's lawful possession prior to the disclosure and had not been
obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully
disclosed to the other party by a third party without restriction on disclosure; (iv) is
independently developed by the other party without use of or reference to the other party's
Confidential Information. The parties agree to use all reasonable care to prevent disclosure of the
other party's Confidential Information to any third party. Notwithstanding the foregoing,
Customer acknowledges and agrees that Government Outreach may disclose Customer's
Confidential Information to its Third Party Providers solely to the extent necessary to provide
products or services under this Agreement, provided that Government Outreach has a non-
disclosure agreement in place with such Third Party Provider that protects such Confidential
Information against disclosure in a manner no less protective than this Agreement. This Section
12 will not be construed to prohibit disclosure of Confidential Information to the extent that such
disclosure is required by law or valid order of a court or other governmental authority; provided,
however, that a party who has been subpoenaed or otherwise compelled by a valid law or court
order to disclose Confidential Information (the "responding party") shall first have given
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2008-431
1
sufficient and prompt written notice to the other party of the receipt of any subpoena or other
request for such disclosure; and shall have made a reasonable effort to obtain a protective order
requiring that the Confidentia11nformation so disclosed be used only for the purposes for which
the order was issued. Notwithstanding the foregoing obligation of the responding party, nothing
in this Section 8 shall limit or restrict the ability of the other party to act on its own behalf and at
its own expense to prevent or limit the required disclosure of Confidential Information. This
Section 8 constitutes the entire understanding of the parties and supersedes all prior or
contemporaneous agreements, representations or negotiations, whether oral or written, with
respect to Confidential Information.
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9. Customer's Responsibilities. Customer agrees to comply with all applicable local, state,
national and foreign laws, treaties, regulations and conventions in connection with use of the
GOEnforce Service, including without limitation those related to data privacy, international
communications, and the exportation of technical or personal data. Customer will ensure that any
use of the GOEnforce Service by Customer's Users is in accordance with the terms of this
Agreement. Customer agree to notify Government Outreach immediately of any unauthorized us
of any password or account or any other known or suspected breach of security or any known or
suspected distribution of Content. If Customer uses the GOEnforce Service from locations other
than the location from which Government Outreach controls and operates the GOEnforce
Service, Customer is solely responsible for compliance with all applicable laws including but not
limited to the export and import regulations of other countries. Customer acknowledges and
agrees that the GOEnforce Service is subject to the U.S. Export Administration Laws and
Regulations. Customer agrees that no part of the GOEnforce Service or information obtained
through use of the GO Enforce Service, is being or will be acquired for, shipped, transferred, or
re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be
used for nuclear activities, chemical biological weapons, or missile projects unless authorized by
the U.S. Government. Proscribed countries are set forth in the U.S. Export Administration
Regulations and are subject to change without notice, and Customer must comply with the list as
it exists in fact. Customer certifies that neither Customer nor any Users are on the U.S.
Department of Commerce's Denied Persons List or affiliated lists or on the U.S. Department of
Treasury's Specially Designated Nationals List. Cu&omer agrees to comply strictly with all U.S.
export laws and assume sole responsibility for obtaining licenses to export or re-export as may be
required. Any unauthorized use of the GO Enforce Service may violate copyright laws, trademark
laws, the laws of privacy and publicity, and communications regulations and statutes. The
GOEnforce Service may use encryption technology that is subject to licensing requirements
under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council
Regulation (EC) No. 1334/2000.
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10. Notices. Government Outreach may give notice by means of a general notice on the
GOEnforce Service by written communication sent by first class mail or pre-paid post to
Customer's address on record in Government Outreach's account information. Such notice shall
be deemed to have been given two days after mailing or posting (if sent by first class mail or pre-
paid post) or 12 hours after sending by email or posting to the GOEnforce Service. Customer
may give notice to Government Outreach at any time by any of the following: letter sent by
confirmed facsimile to Government Outreach at the following fax numbers to the attention of
Legal Affairs: fax number 925-292-2768; letter delivered by nationally recognized overnight
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2008-431
1
delivery service or first class postage prepaid mail to Government Outreach at the following
address to the attention of Legal Affairs: Government Outreach, Inc. 2943 Victoria Meadow Ct,
Pleasanton California 94566 USA. Such notice shall be deemed to have been given two days
after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if
sent by confirmed facsimile).
11. No Assignment. Customer may not assign this Agreement without the prior written approval
of Government Outreach. Any purported assignment in violation of this section shall be void.
12. Modification to Terms. Any change to the terms and conditions of this Agreement or its
policies relating to the GOEnforce Service must be agreed in writing by Government Outreach
and the customer.
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13. U.S. Government Restricted Rights. Any use of the GOEnforce Service by or on behalf of
the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is
provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is
subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and
Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the
Commercial Computer Software - Restricted Rights at 48 CFR 52.227- I 9, as applicable.
Manufacturer is Government Outreach, Inc., 2943 Victoria Meadow Ct, Pleasanton California
94566 USA.
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14. General provisions. Any action related to this Agreement will be governed by California la
and controlling U.S. federal law. No choice oflaw rules of any jurisdiction will apply. Any
disputes, actions, claims or causes of action arising out of or in connection with this Agreement
or the GOEnforce Service shall be subject to the exclusive jurisdiction of the state and federal
courts located in California. This Agreement, together with any applicable Order Form,
represents the parties' entire understanding relating to the use of the GO Enforce Service and
supersedes any prior or contemporaneous, conflicting or additional, communications. No text or
information set forth on any other purchase order, preprinted form or document (other than an
Order Form, if applicable) shall add to or vary the terms and conditions ofthis Agreement. If any
provision of this Agreement is held by a court of competent jurisdiction to be invalid or
unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the
intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full
force and effect. It shall not be deemed a default hereunder and neither party shall be liable for a
failure to perform hereunder arising from causes or events beyond the reasonable control of such
party including, but not limited to, labor disputes of any kind, acts of God, floods, fires,
explosions or storms, transportation difficulties, war, terrorism, or any rule or action of any court
instrumentality or agency of federal or state or local government. No joint venture, partnership,
employment, or agency relationship exists between Government Outreach and Customer as a
result of this Agreement or use of the GOEnforce Service. The failure of Government Outreach
to enforce any right or provision in this Agreement shall not constitute a waiver of such right or
provision unless acknowledged and agreed to by Government Outreach in writing. In the event 0
any litigation of any controversy or dispute arising out of or in connection with this Agreement,
its interpretation, its performance, or the like, the prevailing party shall be awarded reasonable
attorneys' fees and expenses, court costs, and reasonable costs for expert and other witnesses
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2008-431
1
attributable to the prosecution or defense of that controversy or dispute. In the event of a non-
adjudicative settlement of litigation between the parties or a resolution of dispute by arbitration,
the term "prevailing party" shal1 be determined by that same process. Government Outreach
reserves the right to assign its right to receive and collect payments hereunder. Any rights not
expressly granted herein are reserved by Government Outreach.
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15. Definitions
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A. "Content" means the audio and visual information, documents, products and services
contained or made available to Customer in the course of using the GOEnforce Service,
excluding software products.
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B. "Customer Data" shal1 mean any data, information or other materials, provided to
Government Outreach by Customer in the course of using the GOEnforce Service, excluding
identification and other information concerning Customer and Customer's Users.
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C. "Customer Care Services" shal1 mean the Services provided by Government Outreach or
Third Party Providers pursuant to Government Outreach's then-current Customer Care Services
Policy,
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D. "GOEnforce Materials" shall mean any materials provided or disclosed to Customer by
Government Outreach or a Third Party Provider (\) in the course of performing Services other
than the GOEnforce Service, (2) as part of an online tutorial provided with the GOEnforce
Service, or (3) in the course of providing web seminars in which Customer or Customer's Users
enroll.
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E. "Order Form(s)" means the document confirming Customer's subscription for the
GOEnforce Service and any related products or Services, in either electronic or written form. The
Order Form will specifY the term of the subscription, the applicable fees, the billing period, and
other terms. Each such Order Form shal1 be incorporated into and become a part of this
Agreement;
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F. "Services" shal1 mean al1 services provided by Government Outreach or Third Party
Providers under this Agreement, including but not limited to Customer Care Services, but does
not include the GOEnforce Service.
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G. "Government Outreach" means Government Outreach, Inc., a California corporation,
having its principal place of business at 2943 Victoria Meadow Ct., Pleasanton California 94566
USA.
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H. "GOEnforce Service" means the online customer relationship management, bil1ing, data
analysis, and other subscription services identified as such during the ordering process, including
the Government Outreach Software, the Content and the third party software products provided
as part of such services, operated and maintained by Government Outreach or its subsidiaries or
contractors, accessible via http://govoutreach.com or another designated web site or IP address
provided to Customer by Government Outreach, to which Customer is being granted access
under this Agreement;
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1
I. "Government Outreach Software" means Government Outreach's proprietary software and
user interfaces made available to Customer by Government Outreach as part of the GOEnforce
Service;
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J. "User(s)" means Customer's employees, citizens, representatives, consultants, contractors or
agents who are authorized to use the GOEnforce Service and have been supplied user
identifications and passwords by Customer or on Customer's behalf;
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K. "You" or "Customer" means the individual or legal entity, its directors, officers, affiliates,
agents, and employees, as identified in the Order Form.
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