CM-2019-0051 - 2/15/2019M
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POLCO Services and License Agreement
This Agreement ("Agreement") is between the City of Round Rock, Texas ("Customer°),
and Policy Confluence, Inc., a Wisconsin based Delaware C corporation, ("Polco') governs
respective responsibilities for services and licensing arrangement ("Services"). Customer and
Polco may be referred to individually as a Party, or collectively as Parties.
This Agreement provides for services over the period from signed date ("Start Date") through
15 February 2020 ("Termination Date") for $4,000.00 ("Fee").
I. Grant of Limited Right
The services (including access to software and/or apps) outlined in this Agreement are
protected by copyright, trade secret, and other intellectual property laws. Customer is
granted only the right to use the Services and only for the purposes described by Polco.
Polco reserves all other rights in the Services. Until termination of this Agreement and
as long as Customer meets any applicable fee or payment obligations and comply with
this Agreement, Polco grants Customer a limited, nonexclusive, nontransferable right
and license to use the Services.
Nothing in this Agreement grants or shall be construed to grant Customer rights to
access or use those portions of the Services that are proprietary and/or trade secrets,
including, but not limited to, Polco's users' information, which is defined herein as
names, addresses, or any other information, provided by individuals that register and/or
use Polco's website, app, or software ("Polco User Data") that isn't presented publicly.
Further, Polco hereby grants to Customer, and Customer hereby accepts the right,
privilege and nonexclusive license to use the Polco's brand ("Brand") solely In
connection with the Services. Polco represents and warrants that, to the best of its
knowledge, it owns the rights to the Brand. Nothing in this Agreement shall be
construed to prevent Polco from granting any other licenses for the use of the Brand or
Software or from utilizing the Brand or Software in any manner whatsoever. Customer
recognizes that there exists great value and good will associated with the Brand, and
acknowledges that the Brand and all rights therein and good will pertaining thereto
belong exclusively to Polco, and that the Brand has a secondary meaning in the mind of
the public. Customer agrees that It will not during the term of this Agreement, or
thereafter, attack the title or any rights of Polco in and to the Brand or attack the validity
of the license granted herein.
il. Scope of Services
By virtue of this Agreement, Polco is engaged to provide the Services in accordance
with the attached Service and Feature List: Ter 1
The Services do not include any Polco User Data, including but not limited to,
personally identifiable information, responses to any queries on Polco's website or app,
and any other information of a similar nature or otherwise defined in agreements
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between Polco and Polco's users. Such Polco User Data remains the sole property of
Polco and constitutes trade secrets and proprietary information whose disclosure is
prohibited by privacy laws, trade secret laws, other laws and user agreements between
Polco and its Users that requires such Polco User Data to be shielded from third parties
(unless a User chooses to share Polco User Data) and to protect the privacy of users, to
protect Customer from suspected °citizen targeting," and to further protect Customer
from any liability and responsibility that would come with access to, or disclosure of, it.
Following the Effective Date and until such time as the Agreement is terminated,
Customer shall not sublease, sublicense, or assign any of its rights under this
Agreement. Either party may cancel this Agreement at any time upon providing the
other party with 30 days written notice.
Ill. Fees
Polco shall provide its services and limited license outlined in this Agreement for the
term of Start Date through Termination Date for Fee.
IV. Warranties, Disclaimers and Exclusive Remedies
Polco warrants that it will provide the Services referenced in this Agreement. If the
services provided to you for any given month during the services term were not
performed as warranted, you must provide written notice to Polco no later than five
business days after the last day of that particular month.
You acknowledge that Polco does not control the transfer of data over communications
facilities, including the Internet, and that the service may be subject to limitations,
delays, and other problems inherent In the use of such communications facilities. Polco
is not responsible for any delays, delivery failures, or other damage resulting from such
problems. Polco does not guarantee that the services will be performed error -free or
uninterrupted, or that Polco will correct all services errors.
For any breach of the above warranties, Polco will remit a services fee credit to you
calculated at five percent (5%) of pro rated monthly fees for the applicable services for
the month in which the breach occurred. The credit will be provided only towards any
outstanding balance for services owed to Polco, and the remittance of such credit will
represent your exclusive remedy, and Polco's sole liability, for all breaches of any
warranty specified in the agreement. To the extent not prohibited by law, these
warranties are exclusive and there are no other express or implied warranties or
conditions including for merchantability, satisfactory quality and fitness for a particular
purpose.
V. Limitation of Liability
Neither party shall be liable for any direct, incidental, special, punitive, or consequential
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damages, or any loss of revenue or profits (excluding fees under the agreement), data,
or data use. Polco's maximum liability for any damages arising out of or related to this
agreement, whether in contract or tort, or otherwise, shall in no event exceed, in the
aggregate, the total amounts actually paid to Polco for the services under the order that
is the subject of the claim in the (12) month period immediately preceding the event
giving rise to such a claim. Any damage in your favor against Polco shall be reduced by
any refund or credit received by you under the agreement and any such refund and
credit shall apply towards the limitation of liability.
VI. indemnification
Notwithstanding anything contained in this Agreement otherwise limiting liability, Polco
agrees to Indemnify and hold harmless Customer from and against all third -party suits
and causes of action, claims, losses, demands and expenses that Polco has breached
its obligations to Customer under Section II (Scope of Services) only with respect to the
disclosure of Polco's User Data and to the extent such disclosure is the result of actions
predominantly attributable (as agreed to by the parties, such agreement not to be
unreasonably withheld) to Polco.
VII. Governing Law and Jurisdiction
The laws of the state of Texas , without giving effect to its principles of
conflicts of law, govern all adversarial proceedings arising out of this agreement.
If either Party brings an action against the other party any proceeding arising out of this
Agreement, that party may only bring that proceeding in the United States District Court
for the Western District of Wisconsin or in any state court of Wisconsin, and each party
hereby submits to the exclusive jurisdiction of those courts for purposes of any such
proceeding. Each Party hereby waives any claim that any proceeding brought in
accordance with this Agreement has been brought in an inconvenient forum or that the
venue of that proceeding is improper.
Vill. Entire Agreement
This Agreement constitutes the entire understanding between the parties as to the
subject matter of this Agreement and supersedes all other agreements, whether written
or oral, between the parties. No amendment to this Agreement will be effective unless it
is in writing and signed by both parties.
IX. Severability
If any term of this Agreement Is to any extent illegal, otherwise invalid, or incapable of
being enforced, such term shall be excluded to the extent of such invalidity or
unenforceability; all other terms hereof shall remain in full force and effect; and, to the
extent permitted and possible, the invalid or unenforceable term shall be deemed
replaced by a term that is valid and enforceable and that comes closest to expressing
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the Intention of such invalid or unenforceable term.
X Force Majeure
Neither Party shall be responsible for failure or delay of performance if caused by: an
act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication
outage that is not caused by the obligated party; government restrictions (including the
denial or cancellation of any export or other license); other event outside the reasonable
control of the obligated party. The Parties will each use reasonable efforts to mitigate
the effect of a force majeure event. If such event continues for more than 30 days,
either of us may cancel unperformed services upon written notice. This section does not
excuse either Party's obligation to take reasonable steps to follow its normal disaster
recovery procedures or Customer's obligation to pay for the services.
By signing below, I, as an authorized agent on behalf of the Customer, certify that I have read
and agree to be bound by this Agreement and Polco's Terms of Use.
Authorized Agent of
Authorized Signatc
NamelTitle:
Date: :�'/.5q
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Phone 5/Z 2Y. V/ Email:
Signed Agreements and additional questions should be directed to:
Authorized Signature: Date: 18 January 2019
Nick Mastronardi POLCO CEO
8001 Terrace Ave, Middleton WI 53562
608 -709 -VOTE (o), 719-357-9452 (m), 0WkQW-*o.us.
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City of Round Rock
Ra_NO ROCK Agenda Item Summary
Agenda Number:
Title: Consider executing a Services and License Agreement with Policy
Confluence, Inc. (POLCO) for purchase of an online engagement polling tool.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 2/15/2019
Dept Director: Brad Wiseman
Cost: $4,000.00
Indexes: General Fund
Attachments: LAF - POLCO Services and License Agreement for online polling tool
(01.29.19) (00417840xA08F8).pdf, POLCO Services Agreement for Online
Polling Tool (00417488xA08F8).pdf, Sale source.pdf
Department: Planning and Development Services Department
Text of Legislative File CM -2019-0051
This polling software will be used to engage the public during the comprehensive planning
process following an initial round of public meetings. The polling tool will allow the public to
actively engage in the planning process through the website, and it will PDS staff to ask follow
up questions of the public during the input process. The Communications Department
researched a number of similar options and has recommended Polco for this process.
Polco allows you to get verified public input on -demand. It's more reliable than SurveyMonkey,
more civil than Facebook thanks to its method of gathering comments according to the choice
made by the respondent, and less expensive than traditional annual surveys. The cost is
$4,000. Polco is much simpler than its competitors when it comes to posting content, meaning
it can be used by multiple users during the Comprehensive Plan process with little training
required, and it also has the following benefits:
• Verified residents - Users register through the Palco website, where they provide their
address, which is cross-referenced with a voter registration database.
• Accessibility - Polco offers a dedicated profile on a webpage, mobile apps, and
embeddable content.
Polco has provided a letter identifying itself as a sole source provider.
Cost: $4,000
Source of Funds: Genera! Fund
City of ftund Rock Page f Printed on 7/14!2079