CM-04-10-061Request for City Council/City Manager Action
Please submit this form when placing items on the council agenda or when submitting an item to the City Manager
Department:
Contact Person:
Project Name:
CVB
Nancy Yawn
IDSS Software Contract
ContractorNendor Name: Internet Destination Sales System
Amount: $4,000.00
Is Funding Required? Yes 71 No ri
Council Agenda Item Yes No
Submission to City Manager - Yes No n
X
va
47( o
Project Manager/Resource: Nancy Yawniceb
Council Meeting Date:
Funding Source:
Assigned Attorney:
21 -Oct -04
6127-710-30000
J. Kay Gayle
(contract, agreement,amendment,change order,pup hase order,etc.)
CO CAA .
LI: Iv"'-C�
(see required signatures below before submission to the City Manager)
Agenda Wording:
O Initial Construction Contract
• Construction Contract Amendment
O Change Order
CChange in Quantity
O Unforeseen Circumstances
O Initial Professional Services Agreement
O Supplemental Professional Svcs. Agr. #
CIPurchasing/Service Agreement
O Purchase Order
Item(s) to be purchased:
Amount
$4,000
O Other (Please clearly identify action on lines below)
One Year Lease Contract
This is an industry specific software for the CVB industry. We looked at three different
types and discussed with our IT department and this is the top choice.
For Submission to City a na r er Only
Project Mgr. Signature:
Dept. Director Signature:
City Attorney Signature:
City Manager Signature:
Finance Approval
0
0
Date:
Date:
Date:
Date:
70
proval is required for ail items requesting City Manages approval.
Finance -Date and Signature: Cheryl Delaney
10/4/2004
Purchasing -Date and Signature: Howard Baker
10-5-04
gradminlsbatioWangr-council action.* 7-14-04
BLUE SHEET FORMAT
DATE: October 5, 2004
SUBJECT: City Council Meeting, October 14, 2004
ITEM: Consider a resolution authorizing the Mayor to execute an
Agreement with Internet Destination Sales System for
Convention and Visitors Bureau specific software.
Department: Round Rock Convention and Visitors Bureau
Staff Person: Nancy Yawn, Director of Convention and Visitors
Bureau
Justification: This is industry specific software for the Convention
and Visitors Bureau industry. Three vendor products
were compared and the City IT Department was
consulted and IDSS is the top choice.
Funding:
Cost: $4000
Source of funds: Hotel Occupancy Tax
Outside Resources: Internet Destination Sales System
Background Information:
Public Comment:
Blue Sheet Format
1
INTERNET DESTINATION SALES SYSTEM
CUSTOMER PURCHASE AND SALES AGREEMENT
THIS CUSTOMER PURCHASEJJA�ID SALES AGREEM T (hereinafter referred to as the
"Agreement") is entered into as of the O N� day of the month of 2004, between Internet
Destination Sales System LLC (hereinafter referred to as "iDSS"), a Delaware corporation, with offices located
at 250 Marquette Avenue South, Suite 1330, Minneapolis, Minnesota 55403, and the City of Round Rock
(hereinafter referred to as the "City"), a Texas home -rule municipality, with offices located at 221 East Main
Street, Round Rock, Texas 78664.
RECITALS:
WHEREAS, iDSS has a suite of software products referred to as the Internet Destination Sales System
which include system software modules and an applications service provider program, and such are for convention
and event planning, organization and services; and
WHEREAS, iDSS wishes to supply its products and services on a direct basis to City, to license software
to City, and to maintain such software during the term of this Agreement; and
WHEREAS, City desires to obtain such products and services;
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights,
duties and obligations hereunder,
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the
parties as follows:
1.01 Definitions
For purposes of this Agreement, the following terms shall have the following meanings:
A. "Confidential Information" — the proprietary information or trade secrets of a party to this Agreement.
B. "Party" or "Parties" - LDSS and City individually and collectively, as the context may indicate.
C. "Product" - the suite of software products also referred to as the Internet Destination Sales System,
including each of the System software modules and an applications service provider ("ASP") program, for
convention and event planning, organization and services (also referred to herein as the "iDSS Product," the
"Product," or the "System"). Specifically, the iDSS Product consists of the software modules and services
described herein or in any exhibit to this Agreement.
D. "Services" - various types of software support services as provided by iDSS to City, covering such
support as applications service provider ("ASP") services, training, maintenance services, on-site support,
application engineering, site engineering and installation with respect to the iDSS Product. As an ASP, iDSS
customer services consist of the maintenance of one or more databases, created and maintained by the City,
housed on servers maintained and managed by iDSS, and which databases may be accessed by City over the
Internet.
00072589
E. "Service Bureau" - conduct of an Internet or software -based service system for or on behalf of a party
other than the City using the Product or Services referenced in this Agreement.
F. "Software" - a set of instructions that allows hardware to store, manipulate and/or process iDSS related
information, incorporated into iDSS' Product. All such instructions constitute proprietary information and/or trade
secrets of iDSS. City is licensed by iDSS to utilize the Software, and associated manuals and documentation, as
part of City's purchase of the Product.
G. "Terminate" or "Termination" - dissolution of this Agreement through means available to a Party
under the terms and conditions of this Agreement.
2.01 Objectives and Implementation
A. As set forth in this Agreement, and subject to the terms and conditions herein stated, iDSS will
supply its Products and Services on a direct basis to City, license Software to City, and maintain the Software
throughout the term of this Agreement.
B. The Products and Services to be purchased by City from iDSS consist of two (2) System software
modules from iDSS ("Modules"), to -wit: "Convention Sales" and "Convention Services." The individual and
aggregate Module prices for this package are set forth in Attachment 1. (Prices are subject to change as set forth
in this Agreement). City may, from time to time, purchase related System upgrades, enhancements, utilities, or
Services not listed within Attachment 1, and which shall be unique to the City, at prices established within a
written quotation issued by iDSS at the time of the proposed purchase. City will not be charged for System
upgrades that are developed by iDSS and made available generally by iDSS to other customers.
C. City will provide all data necessary for the utilization of the iDSS System Modules for City's
purposes. iDSS will integrate City's data (hereinafter "Customer Content") into the Module programs and then
provide the data fully formatted for City's application use. City grants to iDSS, and iDSS accepts from City, a non-
exclusive, worldwide, royalty -free license for the term of this Agreement to edit, modify, adapt, translate, publish,
transmit, copy, distribute, display and use any Customer Content in connection with the performance by iDSS of
this Agreement. All such Customer Content shall be and remain the Confidential Information of the City, and City
shall retain all right, title and interest (including copyright and other proprietary or intellectual property rights) in
the Customer Content, all legally protectable elements thereof and any derivative works thereof. iDSS will provide
to City, and maintain, any and all passwords or other access codes necessary to permit City access to the Customer
Content, and City will keep iDSS advised of any changes to these passwords or access codes that may be initiated
by City in order to permit iDSS to administer the System. City shall have the right to have access to its Customer
Content as provided at Paragraph 2.01E below, and the right to retrieve its Customer Content at any time. City
furthermore shall have access, at all reasonable hours, and upon advance request, to facilities used for the housing
of servers containing Customer Content for the purpose of inspecting the security and integrity of the facility.
D. In connection with activation and testing of the system by iDSS for City, iDSS will provide
training to City's staff, as designated and contracted by City in City's offices or by means of on-line Internet access
from City's offices. iDSS will take all steps reasonably necessary so that the Modules are fully operational for the
City on or before December 1, 2004.
E. In connection with the Services to be rendered by iDSS under this Agreement as an ASP, City will
have connectivity to the iDSS ASP servers ninety-seven percent (97%) of the time, twenty-four (24) hours a day,
seven (7) days a week; provided, however, that iDSS cannot guarantee the performance, connectivity or
accessibility of the Internet or the Worldwide Web; and provided further, that iDSS may from time to time, for
purposes of maintaining and/or upgrading the System, shut down or suspend performance of the System at times
outside the normal daily operations of the City, which shall be deemed to be between 8:00 a.m. and 5:00 p.m.
2
Central Time; and provided further, that from time to time connectivity to the System may be required to be shut
down, suspended, delayed, or disrupted when attributable to the time required for customized service or software
product development requested by City.
F. In connection with the maintenance services to be provided by iDSS under this Agreement, it is the
intention of iDSS to provide customer support, by telephone, facsimile and/or the Internet, at all times, through its
Client Relationship Managers. In the event that City considers that its support needs are not being met, City may
contact an iDSS Client Relationship Manager. In the event City continues to consider that its support needs are not
being met, then City should first contact the Chief Technical Officer of iDSS, and if still unsatisfied then contact
the Executive Vice President or the President of iDSS.
G. For an additional charge, set forth in Attachment 1 to this Agreement, iDSS shall provide to City
each calendar month a secure file transfer of data files from iDSS servers to servers maintained by the City, over
the Internet, which shall include all Customer Content or updated Customer Content from the previous month, for
purposes of backing up City's database.
3.01 Term of the Agreement
The term of this Agreement will commence as of the completion of training and implementation, projected
to be December 1, 2004 ("Commencement Date") and continue thereafter for so long as the City continues to
subscribe for services rendered by iDSS, unless terminated by law or by a Party in accordance with the terms and
conditions set forth herein.
4.01 Master Agreement
This Agreement provides terms and conditions for the purchase of iDSS Product and Services by City.
Any additional documents that are intended to set forth the agreement of the parties with respect to the subject
matter of this Agreement are specifically referenced within this document, and shall be deemed incorporated herein
by reference as if set forth verbatim once issued by the City and accepted by iDSS as set forth within this
Agreement. There are no other or contemporaneous agreements of the Parties that have not been referenced or set
forth in this document.
5.01 License
A. iDSS grants City a perpetual, nontransferable, nonexclusive license to use the iDSS Software and
applicable manuals and documentation. City may install and use the Software only as contemplated by this
Agreement.
B. City will not: (i) use the Software to provide services under any name other than that of City or
iDSS; (ii) use the Software to process the data of third parties without the prior written consent of iDSS; (iii)
modify or change the Software; (iv) decompile, disassemble or otherwise reverse -engineer the Software; or (v)
copy the Software, except to the extent that data based upon such software may be backed up for purposes of data
preservation and consistent with direction and approval of iDSS.
C. iDSS will install City data and maintain the Product, provide training to City's employees, and
furnish services as provided pursuant to this Agreement. If necessary to the proper deliver of services to City by
iDSS, City will install a modem and dial-up telephone line or other accessible electronic medium to allow iDSS to
access, review, modify, and service the Software remotely.
D. City will pay iDSS the Software license fees, in the amounts and under the terms set out in
Attachment 1 to this Agreement. Unless stated otherwise herein, all fees shall be payable within thirty (30)
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calendar days of City's receipt of an invoice from iDSS therefor. iDSS may change its fees for products or
services not otherwise listed in the Attachment 1 upon ninety (90) days' prior written notice to the City. iDSS
reserves the right to change the prices set forth within Attachment 1 during the term of this Agreement only under
the following conditions: Fee increases shall not exceed the amount of ten percent (10%) of the original fee per
annum. iDSS expressly understands and agrees that City's fiscal year is from October 1st through September 30th
of each year, and any such increase shall not take effect until the beginning of the fiscal year in which the increase
is contemplated.
6.01 Non -Appropriation
This Agreement is a commitment of City's current revenues only. It is understood and agreed that City
shall have the right to terminate this Agreement at the end of any of City's fiscal years (October 1st through
September 30th) if the governing body of City does not appropriate funds sufficient to pay the contractual charges
as determined by City's budget for the fiscal year in question. City may effect such termination by giving iDSS a
written notice of termination before the end of its then -current fiscal year, and in such event City will not incur any
financial liability. City shall endeavor to pay any charges which are due and have not been paid from those funds
remaining which are appropriated for said charges at or before the end of its then -current fiscal year. In the event
the term of this Agreement falls into more than one fiscal year, and if City must terminate any said Agreement due
to non -appropriation of funds during the term other than the initial included year, in that event City shall be
entitled to a partial refund of the prepaid Agreement(s) or a partial abatement if fees have not been paid.
7.01 Invoices; Terms of Payment
A. Each invoice issued by iDSS under this Agreement will detail the Product and/or Services being
invoiced, separately identify the charges for each invoice item, and identify applicable taxes, if any. City is a tax-
exempt entity. All prices shall be stated and payable in United States dollars. Any prices stated in Attachment 1
that are for Products are stated upon shipment from iDSS premises. Each invoice must be sent to City at the
following address: City of Round Rock, Attention: Accounts Payable, 221 East Main Street, Round Rock, TX
78664-5299. Invoicing for fees and charges will be as follows, based upon modules activated:
i Module set up charges;
ii Training fees, invoiced after the date of scheduled
wining;
iii Annual User Subscription fees, payable in advance quarterly on a calendar year basis
(with partial quarters being prorated).
B. City will notify iDSS of any disputes on an invoice within ten (10) working days of installation,
training, and acceptance, and the Parties will use their best efforts to resolve the dispute expeditiously. Provided
that there is a good faith basis for a dispute, the time for paying the portion of the invoice in dispute will be as
agreed upon between the Parties from the date of resolution of the dispute. Undisputed portions of an invoice shall
be paid in accordance with this Agreement.
C. Within ten (10) working days of the invoicing times referenced above, iDSS will deliver an
invoice to City. Payment on all amounts referenced within the invoice will be as stated on iDSS' invoice, not later
than thirty (30) days following receipt of invoice by Customer, but in accordance with the Prompt Payment Policy
stated herein in Section 8.01.
8.01 Prompt Payment Policy
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to iDSS will be made within
thirty (30) days of the day on which the City receives the supplies, materials, equipment, or performance, or within
4
thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day
on which the City receives a correct invoice for the supplies, materials, equipment or services, whichever is later.
iDDS may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not
made in accordance with this Prompt Payment Policy; however, this policy does not apply to payments made by
the City in the event:
A. There is a bona fide dispute between City and iDDS concerning supplies, materials, services or
equipment delivered or the services performed that causes the payment to be late; or
B. The terms of a federal agreement, grant, regulation, or statute prevent City from making a timely
payment with federal funds; or
C. There is a bona fide dispute between iDDS and a subcontractor or between a subcontractor and its
suppliers concerning supplies, materials, or equipment delivered or the services performed which caused the
payment to be late; or
D. The invoice is not mailed to City in strict accordance with instructions, if any, on the purchase
order or agreement or other contractual agreement.
9.01 Independent Contractor Status
iDSS is an independent contractor, not City's employee. The employees or subcontractors of iDSS are not
City's employees. This Agreement does not create a partnership relationship. Neither party has authority to enter
into contracts as agent for the other party. iDSS and City agree to the following rights consistent with an
independent contractor relationship:
A. iDSS has the right to perform services for others during the term of this Agreement; and
B. iDSS has the sole right to control and direct the means, manner and method by which seryices
required by this Agreement will be performed; and
C. iDSS has the right to hire assistants as subcontractors, or to use employees to provide the services
required by this Agreement; and
D. iDSS or its employees or subcontractors shall perform the services required by this Agreement.
City shall not hire, supervise, or pay any assistants to help iDSS; and
E. Neither iDSS nor its employees or subcontractors shall receive any training from City in the skills
necessary to perform the services required by this Agreement; and
F. City shall not require iDSS or its employees or subcontractors to devote full time to performing the
services required by this Agreement; and
G. Neither iDSS nor its employees or subcontractors are eligible to participate in any employee
pension, health, vacation pay, sick pay, or other fringe benefit plan of City.
10.01 Assignment
Neither iDSS nor City may assign this Agreement without the prior express written consent of the other, which
consent shall not be unreasonably withheld.
5
11.01 Amendments; Waiver
A. Supplemental Agreement. The terms of this Agreement may be amended, modified, changed, or
supplemented only by written Supplemental Agreement hereto, duly authorized by Round Rock City Council
Resolution or by City Manager action, if City determines that there has been a significant change in (i) the scope,
complexity, or character of the services to be performed; or (ii) the duration of the work. Any such Supplemental
Agreement must be executed by both parties within the period specified as the term of this Agreement. iDSS shall
make no claim for extra work done or materials furnished unless and until there is full execution of any
Supplemental Agreement, and City shall not be responsible for actions by iDSS nor for any costs incurred by iDSS
relating to additional work not directly authorized by Supplemental Agreement.
B. Waiver. No course of dealing, and no failure of either Party to strictly enforce any term, right or
condition of this Agreement will be considered a general waiver of any term, right or condition of this Agreement.
No waiver by either Party of any default, right, or remedy available to such Party under this Agreement shall be
deemed a waiver of any other or subsequent default, right or remedy.
12.01 Cancellation for Convenience
A. City may at any time, for its convenience and without cause, cancel this Agreement so long as
written notice of cancellation is provided to iDSS prior to the delivery date of the Products or commencement of
any new Services covered by this Agreement. Upon receipt of a cancellation notice, iDSS will immediately cease
performing work and incurring costs in connection with this Agreement. After receipt of iDSS' invoice, City will
pay iDSS any undisputed amounts due under the Agreement for all Products delivered and Services performed.
B. Either Party may terminate this Agreement for convenience upon thirty (30) days' prior written
notice to the other. The notice of termination shall specifically set forth the effective date of the termination. A
termination of this Agreement will not affect the obligations or remedies of either Party with regard to the
following:
i City's payment to iDSS for any monies due for Products shipped, or for Services rendered, and not
paid for; or
ii the protection of Confidential Information provided the other Party; or
iii any Agreement previously accepted.
13.01 Termination for Default
A. If either Party is in default of any of its material obligations under this Agreement, then the other party
may issue a written notice of default. Such notice of default may specify that, if the default continues for thirty (30)
calendar days after the written notice, then this Agreement shall be automatically terminated as of the date
specified within said notice of default. Material default of the City shall include but shall not necessarily be
limited to each of the following conditions, allowing iDSS to terminate pursuant to this paragraph:
i failure of City to make payment for Materials and Services delivered to City pursuant to this
Agreement;
ii any change in the direct or indirect ownership of City if, in iDSS' opinion, such change may be
detrimental to iDSS' interests.
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B. Either Party may terminate this Agreement immediately, upon giving written notice to the other Party
that the other Party has suffered one or more of the following actions, each of which shall constitute a material
default of this Agreement:
i makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar
officer is appointed to take charge of all or substantially all of its property; or
ii becomes insolvent or has a petition in bankruptcy, reorganization or similar action filed by or
against it and such petition is not dismissed within thirty (30) calendar days after it was filed; or
iii fails to comply with material provisions of applicable law.
C. Any termination by iDSS under this Section 13.1 gives iDSS the right to deactivate any active licensed
Software and software license under this Agreement, including the removal of all manuals and any special
Software arrangement extended to the City, provided that notice of intent to deactivate any such Software and
License is included within iDSS' notice of default provided to the City.
14.01 Notices
A. Unless otherwise provided, all notices required by this Agreement shall be in writing. Any written
notice by either party to this Agreement shall be sufficiently given by any one or combination of the following,
effective upon delivery, whichever form of delivery first occurs: (i) hand delivery to the last known business
address of the individual or entity to whom the notice is due; (ii) hand delivery to the authorized agent,
representative or officer of the individual or entity to whom the notice is due, wherever they may be found, or (iii)
by United States mail, enclosed in a postage prepaid envelope properly addressed to the individual or entity to
whom the notice is due, at the address of that individual or entity as specified within Subsection D below, or any
subsequent designations provided in writing by one party to the other.
B. Notices required by this Agreement may be transmitted by facsimile (fax) or electronic
communication (e-mail), except as provided in Subsection C below. Faxed notices and e-mail notices shall be
transmitted to the last known fax number or e-mail address of the party to whom the notice is required to be sent,
and shall be acknowledged in writing by that party. All faxed notices and e-mail notices shall also be sent by hard
copy as provided at Subsection D below. A faxed notice or e-mail notice shall be effective on the date it is
acknowledged in writing by the recipient, or on the date of effective delivery of the hard copy as provided at
Subsection D below, whichever first occurs.
C. The following notices required by this Agreement shall not be transmitted solely by electronic
communication, but also shall be prepared and delivered in tangible written form: (i) notice of termination of the
Agreement; (ii) notice of default or breach of the Agreement; (iii) notice of claims for compensation or other
damages; and (iv) notice of alleged or actual infringement of any trademark, patent or copyrights.
11 Notices and correspondence relating hereto shall be sent to the following respective representatives:
If to iDDS:
Internet Destination Sales System LLC (iDSS)
Attention: Mr. Peter Hedlund, Executive Vice President,
250 Marquette Avenue South, Suite 1330
Minneapolis, MN 55403
Telephone: 612-767-7800
Facsimile:
e-mail:
612-767-7801
phedlund@idss.com
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If to City: With a copy to:
City of Round Rock City of Round Rock
City Manager City Attorney
221 East Main Street 309 East Main Street
Round Rock, TX 78664-5299 Round Rock TX 78664
Telephone: 512-218-5401 Telephone: 512-218-7050
Facsimile: 512-218-7097 Facsimile: 512-255-8986
e-mail citymanagerkround-rock.tx.us e-mail: slsheets@round-rock.tx.us
Each party shall have the obligation to keep the other party informed of any changes in its designated
representative and/or the address(s) and contact numbers at which its designated representative may be reached.
Notices sent by a party to the last address(s)/contact number(s) of which it has notice under this agreement shall be
deemed sufficiently delivered.
15.01 Governing Law; Venue
This Agreement shall be enforceable in Round Rock, Williamson County, Texas. This Agreement will be
deemed to have been made in the State of Texas, and will be construed, interpreted and applied in accordance with
the laws of that state, and exclusive venue shall lie in Williamson County, Texas.
16.01 Access to Customer's Premises
iDSS will have reasonable access to City's premises during City's regular business hours and at such other
times as may be agreed upon by the parties in order to enable iDSS to perform its obligations under this
Agreement. iDSS will coordinate access with City prior to any visit.
17.01 Confidential Information
A. Each Party (the Receiving Party) agrees that it will not disclose to any person or entity not a party to
this Agreement any tangible information or data marked as the proprietary information or trade secrets
("Confidential Information") of the other Party (the Disclosing Party), or if provided orally, confirmed in writing to
be Confidential Information within twenty (20) calendar days after its disclosure. Confidential Information also
shall include any information exchanged between the Parties that a Party should reasonably be aware as being
confidential.
B. A Receiving Party will treat all Confidential Information as confidential, prohibit recopying, and use it
only in connection with fulfilling its obligations, or exercising its rights under this Agreement. The Receiving
Party will return all Confidential Information to the Disclosing Party upon the termination of this Agreement or
upon the reasonable request of the Disclosing Party.
C. The Receiving Party recognizes and agrees that the unauthorized use or disclosure of Confidential
Information will cause irreparable injury to the Disclosing Party for which it has no adequate remedy at law, and
that any actual or contemplated breach of this section will entitle the Disclosing Party to seek immediate injunctive
relief prohibiting the breach, in addition to any other rights and remedies available to it. All obligations of
nondisclosure of Confidential Information will expressly survive the termination, cancellation or expiration of this
Agreement.
D. The obligations of nondisclosure of Confidential Informa
Information that the Receiving Party can demonstrate:
on w
11 not apply to Confidential
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i is, at the time of disclosure, or thereafter becomes, a part of the public domain without breach of
these terms by the Receiving Party;
ii was previously known by the Receiving Party without any obligation to hold it in confidence;
Hi is received from a third party authorized to disclose such Confidential Information without
restriction;
iv is independently developed by the Receiving Party without the use of the Confidential
Information;
v is approved for release by written authorization of the Disclosing Party, but only to the extent of
such authorization;
vi is required by law or regulation to be disclosed, but only to the extent and for the purposes of the
required disclosure; or
vii is disclosed in response to a valid order of a court or lawful request of governmental agency, but
only to the extent of and for the purposes of such order or request, provided that the Receiving
Party who is subject to the order first notifies the Disclosing Party of the order or request and
permits the Disclosing Party to seek an appropriate protective order.
E. Each Party's right to possess and use Confidential Information of the other Party will terminate upon
the latter of: (i) whenever the other Party no longer has a need to retain the information to fulfill its obligations or
exercise its rights under this Agreement; or (ii) any termination of this Agreement. At that time, each Party will
immediately deliver to the other Party or certify destruction of all Confidential Information and all copies;
provided that iDSS shall not, under any circumstances, destroy any Confidential Information of the City unless it
has first provided notice to the City and a reasonable opportunity for the City to respond.
Notwithstanding the above, the parties recognize, acknowledge and accept that the City is a
municipality subject to statutory obligations under the Texas Open Records Act and the Texas Public
Information Act, and that its duties run in strict accordance therewith.
18.01 Indemnification; Liability
A. Each Party (the Indemnifying Party) will defend, indemnify and hold harmless the other Party (the
Indemnified Party), and its officers, officials, employees and agents from and against all losses, damages, expenses
(including attorneys' fees and costs), claims, suits and liabilities to the extent caused by the negligent act or
omission, the willful misconduct, or the actual violation of any applicable law by the Indemnifying Party or any of
its officers, officials, employees, agents or subcontractors. The Indemnifying Party will, upon the Indemnified
Party's request, immediately assume the handling, negotiation and defense of any such claim for which the
Indemnifying Party is responsible and will keep the Indemnified Party fully informed of all developments related
to such activities. Each Party's obligations under this section will continue regardless of the termination of this
Agreement for events that arose while this Agreement was in effect.
B. If any Product bearing the iDSS name, in iDSS' opinion, is likely to or becomes the subject of a
claim of infringement of a United States copyright, trademark or patent, iDSS will, at its option and expense, either
(i) modify the Product to make it non -infringing, but assuring that the Product continues to substantially perform
the functions in accordance with original Documentation; (ii) settle the claim by procuring for City the right to
continue using the Product; or (iii) defend City against the claim. iDSS will not be responsible for payment for any
settlement made without iDSS' written consent, which consent shall not be unreasonably withheld. If iDSS is
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required by a court order to discontinue the sale or maintenance of the Product, City may (i) notify iDSS in writing
at the time iDSS discontinues the sale of the Product that City elects to continue using the Product at its sole risk
until an injunction or other court order terminating continued use thereof has been issued, it being understood that
iDSS shall participate at its expense in the defense of any such action if such claim names iDSS as a defendant; or
(ii) City may return the Product, included any associated media, any printed materials, and any "online" or
electronic Documentation to iDSS and receive a prorated refund of the Product purchase cost.
C. iDSS will have no liability for any claim of patent, trademark or copyright infringement based upon
(i) use of the Product in a manner other than for which it was intended; (ii) any infringement, or alleged
infringement, of any patent, trademark or copyright issued by any country other than the United States and Canada;
(iii) unauthorized modification or changes made to the Product; (iv) operation of the Product in combination with
other products selected by City for its use; or (v) iDSS' compliance with City's designated designs, material usage
or specification furnished by City, in which case City will defend, indemnify and hold iDSS harmless against any
claim of infringement of any copyright or patent, unless such claim is based upon iDSS' failure to comply with its
obligations under this Agreement to protect the City's Confidential Information.
D. This section states the full liability of iDSS arising from or relating to infringement.
19.01 IDSS Intellectual Property Rights
All drawings, data, designs, tooling, equipment, procedures, engineering changes, inventions, trade secrets,
copyrights, mask works, source code, patents, patent applications, know-how, computer Software and all parts,
trademarks and all other information, technical or otherwise which was developed, made or supplied by iDSS in
the production of any Product or the performance of any Service sold, rendered or licensed under this Agreement
will be and remain the sole property of iDSS, or its licensor.
20.01 Privacy
A. Each party will comply, and assist the other party to comply with any applicable laws or
regulations with respect to data privacy.
B. In any event, iDSS agrees that it will:
i not collect or record personal information of an individual unless it is necessary for the
performance of its obligations under this Agreement;
ii not collect personal information about individuals in a manner that is unlawful, unfair or
that is unreasonably intrusive;
iii not use personal information collected by it in respect of an individual for any purpose
other than that which the individual would reasonably expect;
iv not disclose personal information collected by it in respect of an individual to third
persons without the consent of the individual; and
v take reasonable steps to permit personal information collected by it in respect of an
individual to be kept accurate, up-to-date, secure and free from unauthorised access.
21.01 Dispute Resolution
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If a dispute or claim arises under this Agreement, the parties agree to first try to resolve the dispute or
claim by appropriate internal means, including referral to each party's senior management. If the parties cannot
reach a mutually satisfactory resolution, then and in that event any such dispute or claim will be sought to be
resolved with the help of a mutually selected mediator. If the parties cannot agree on a mediator, City shall select
one mediator and iDDS shall select one mediator and those two mediators shall agree upon a third mediator. Any
costs and fees, other than attorney fees, associated with the mediation shall be shared equally by the parties.
Mediation shall be conducted in Round Rock, Texas, and any mediation award shall be enforced pursuant to the
laws of the State of Texas and of the United States.
City and iDDS hereby expressly agree that no claims or disputes between the parties arising out of or
relating to this Agreement or a breach thereof shall not be decided by any arbitration proceeding, including without
limitation, any proceeding under the Federal Arbitration Act (9USC Section 1-14) of any applicable state
arbitration statute.
22.01 Force Majuere
Neither iDSS nor City shall be deemed in violation of this Agreement if it is prevented from performing
any of its obligations by reasons for which it is not responsible or circumstances beyond its control. However,
notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to
mitigate its effects.
23.01 Warranty; Negligence
A. iDSS warrants that (i) it has clear title to the Software; (ii) for a period of one (1) year after
installation or implementation, the Software, if used by Customer in accordance with the Software's user
documentation, will substantially perform to the Documented functions of the Modules set forth in Attachment 1;
and (iii) the Software will be free from substantial defects in materials and workmanship under normal use and
service.
B. iDSS' entire liability and Customer's exclusive remedy for any claim related to or arising out of
breach of the above -referenced warranty is correction of defects in Products by repair, replacement, re -
performance of service or credit, at iDSS' discretion, except that iDSS' liability for infringement of any copyright
or other intellectual property rights shall be as set forth within Section 18.01 above. iDSS has no liability for
claims relating to or arising from the use of materials, equipment or software not developed by or bearing the iDSS
name.
C. iDSS does not warrant that the operation of the Products or Software will be uninterrupted or
error -free. Similarly, iDSS does not warrant that the functions of the Product or Software will meet City's
requirements, except as provided for herein, or that the Product or Software will operate in combination with other
products selected by City for its use.
D. iDSS assumes no liability for defects caused by modification, repair, installation, operation or
maintenance except as described in iDSS' manuals, or for negligent or other improper use of the Products or
Software.
E. THE WARRANTIES AND LIMITATIONS OF LIABILITY SET FORTH WITHIN THIS
SECTION REPLACE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ALL
OTHER WARRANTIES ARE DISCLAIMED AND EXCLUDED BY iDSS. IN NO EVENT WILL iDSS BE
LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF USE OR LOSS OF
REVENUE AND iDSS FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES IN CONNECTION
WITH CLAIMS ARISING UNDER THIS SECTION.
24.01 Local, State and Federal Taxes
iDSS will pay all taxes, if any, required by law arising by virtue of the services performed hereunder. City
is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and
Use Tax Act.
iDSS shall pay all income taxes, and FICA (Social Security and Medicare taxes) incurred while performing
services under this Agreement. City will not do the following:
A. Withhold FICA from iDSS' payments or make FICA payments on iDSS' behalf; or
B. Make state and/or federal unemployment compensation contributions on iDSS' behalf; or
C. Withhold state or federal income tax from iDSS' payments.
25.01 General and Miscellaneous
A. Severability. The invalidity, illegality, or unenforceability of any provision of this Agreement or
the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the
validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed
severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this
Agreement did not contain the particular portion or provision held to be void. The parties further agree to amend
this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent
of the stricken provision. The provisions of this section shall not prevent this entire Agreement from being void
should a provision which is of the essence of this Agreement be determined void.
B. Supplemental Agreement. The terms of this Agreement may be modified by written Supplemental
Agreement hereto, duly authorized by Round Rock City Council or City Manager action, if City determines that
there has been a significant change in (i) the scope, complexity, or character of the services to be performed; or (ii)
the duration of the work. Any such Supplemental Agreement must be executed by both parties within the period
specified as the term of this Agreement. iDSS shall not perform any work or incur any additional costs prior to the
execution, by both parties, of such Supplemental Agreement. iDSS shall make no claim for extra work done or
materials furnished unless and until there is full execution of any Supplemental Agreement, and City shall not be
responsible for actions by iDSS nor for any costs incurred by iDSS relating to additional work not directly
authorized by Supplemental Agreement.
C. Entire Agreement. This Agreement, along with all appended documents, constitutes the entire
agreement on this subject matter, and all prior agreements, representations, statements, negotiations, understandings
and provisions are excluded unless the parties consent otherwise in writing.
D. Compliance with Laws, Charter and Ordinances. iDSS, its consultants, agents, employees and
subcontractors shall use best efforts to comply with applicable federal and state laws, the Charter and Ordinances
of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state
and national boards, bureaus and agencies.
E. Standard of Care. iDSS represents that it is specially trained, experienced and competent to
perform all of the services, responsibilities and duties specified herein and that such services, responsibilities and
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duties shall be performed, whether by iDSS o or designated subconsultants, in a manner according to generally
accepted business attraction practices.
26.01 Attachments
The following documents are attached and incorporated herein by reference, as if set forth verbatim:
Attachment 1: Price List
IN WITNESS WHEREOF, the parties have executed the foregoing Agreement on the dates indicated.
INTERNET DESTINATION
SALES SYSTEM LLC�'DyS�S
By
74
/77
Peter Hedlun
Title: Executive Vice President
Date Signed: f0 — l — 6)
ATTEST:
By:L -fit 14/1.1)1,1)(
Christine R. Martinez, City Secretary
APPROVED AS TO FORM:
By:
Stephan L. Sheets, City Attorney
CITY OF ROUND ROCK, TEXAS
By:
Tit : /0/0/146-
Date Signed:
/0-8-b(1
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Attachment 1
CITY OF ROUND ROCK
CONFIDENTIAL PRICE LIST
Internet Destination Sales System (iDSS2
Charges: Module Selected (One Time Activation Charge)
$ 2,000 - Convention Sales Module
$ 2,000 - Convention Services
$ 4,000 - All Modules Purchased Simultaneously
*Note: Partial activation fee waived; full payment of $4,000 due in accordance with the provisions
of this "Customer Purchase and Sales Agreement."
Annual User Subscription Fees (Available in groups of five):
Not to exceed $1,500.00 per year based on 1-3 users. (User fees waived for the first 90 days)
Training Charges:
$ 300 - Per Day / per iDSS Staff Trainee (not inclusive of travel & hotel expenses)
It is expressly understood and agreed by and between the parties that such Training Charges,
including travel and hotel expenses, shall not exceed a total of One Thousand and No/100
Dollars ($1,000.00) unless specifically authorized otherwise in writing by City.
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