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HomeMy WebLinkAbout4389 Contract Number: Vendor: Subject: Department: File Class: Begin Date: End Date: Review Date: Vault Date: Comments: 4389 WEBCHECK INC Utility & Lien Information Access PW Admin LEG 12-1 09/23/2003 06/15/2011 Cancellation w/30 day notice Review date for tracking only VirEBCHECK UTILITY AND LIEN INFORMATION ACCESS AGREEMENT THIS WEBCHECK UTILITY AND LIEN INFORMATION ACCESS AGREEMENT is made and entered into this,,2.~.day of~2003, by and between Webcheck, Inc., (hereafter referred to as "Webcheck") and City of Bremerton, Washington (herein referred to as "City"). RECITALS: A. Webeheck, Inc., has developed and is marketing Intemet based software and hardware applications in order to greatly improve the efficiency with which utility and lien information may be exchanged between title insurance and escrow companies and municipalities. B. The City desires to utilize Webcheck's software and hardware products and services to improve the City's dissemination of utility and lien information to title insurance and escrow companies. NOW, THEREFORE, 1N CONSIDERATION OF THE MUTUAL COVENANTS, BENEFITS AND OBLIGATIONS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS: 1. IDENTIFICATION OF PARTIES. Webeheek, Inc., is a Washington corporation whose principal th place of business is located at 416 West 27 Place, Kennewick, WA 99337. The City of Bremerton is a municipal corporation located in Kitsap County, Washington, whose city hall business address is located at 239 4th Street, Bremerton 98337. 2. CANOPY. "Canopy" is the name given by Webeheck to a bundled system which includes Interact based computer software applications developed by Webeheck, related computer hardware provided by Webcheck and utility and lien information delivery and retrieval services made available to title insurance companies, escrow companies and other persons or entities with whom City may choose to contract. 3. GRANT OF CANOPY LICENSE AND USE OF CUSTOMER PREMISES EQUIPMENT. Webeheck hereby grants to City and City hereby accepts from Webcheek a nontransferable, nonexclusive license to use the Canopy systexn, including all computer software and hardware upgrades to be provided by Webeheck, during the term of this Agreement. All of the Canopy computer software and hardware to be provided by Webeheck to City as part of such Webcheek Utility and Lien Information Access Agreement Page I system including, but not limited to, servers and the software applications loaded on such servers (hereal~er collectively referred to as "Customer Premises Equipment" or "CPE") is described on Annex "A" which is attached hereto and by this reference incorporated herein. 4. SERVICE LEVEL TERMS. Webeheck agrees to provide City with a level of service equal to or greater than that which is set forth in the Service Level Minimums described on Annex "B" which is attached hereto and by this reference incorporated herein. 5. CITY TO PROVIDE PARCEL AND LIEN INFORMATION. It is agreed that City shall, in a regular, timely and accurate manner, provide Webcheck, via the CPE, with "read only" access to utility and lien information, which utility and lien information will in mm be made available by Webcheck to title insurance companies, escrow companies and other persons or entities to whom City desires to provide such information ming the Canopy system. City understands and acknowledges that Webeheck cannot control the accuracy of any of the utility and lien information transmitted by way of the Canopy system. City further understands and acknowledges that communications via the Internet may not be secure and may be subject to interception or loss. Webcheck disclaims liability for, and City hereby releases Webcheck from, all damages (including, but not limited to, those for business losses and loss of data, data files or programs), liabilities, costs, attorney's and expert's fees and all other expenses incurred by City arising out of or relating to the me of the Canopy system and its component parts. 6. ADDITIONAL DUTIES OF CITY. City agrees to allow the placement of the CPE on the premises of an appropriate City building to be designated by the parties during the term of this Agreement. City further agrees to provide Webcheck, at no cost to Webcbeck, with the necessary technical computer related personnel and cooperation in installing and maintaining Webcheck's CPE on the premises of such City building. City further agrees to provide Interact access for the CPE either via an unused static IP address or via the forwarding of TCP ports 80 and 22 from a static IP address that is already in use (i.e., that of a router). City further agrees to provide Webcheck personnel with unlimited remote access to the CPE via the Interact and provide Webcheck personnel with physical access to the CPE as needed upon reasonable advance notice. 7. OWNERSHIP OF CUSTOMER PREMISES EQUIPMENT (CPE). It is agreed by the parties that all CPE referred to herein is the sole property of Webeheck and is being provided to City solely to allow City to utilize the Canopy system. Webeheck shall, during the term of this Agreement, be responsible for maintaining the CPE in good working condition. Provided, however, City shall reimburse Webcheck on a time and materials basis as documented in an invoice for the costs to repair and/or replace Webeheck CPE in the event of (a) misuse by Webcheck Utility and Lien Information Access Agreement Page 2 City personnel or its agents, (b) failure by City personnel or its agents to exercise reasonable care, (c) physical damage by City personnel or its agents, (d) the~ or (e) disaster. 8. COMPENSATION/BILLING. Each Internet based utility and lien search of a particular address with the jurisdiction of City made through the use of the Canopy system shall be considered a "hit". City agrees to pay Webeheek the sum of eight ($8.00) Dollars per hit made to the Canopy system. City may, in turn, assess a charge to the title insurance eorapany, escrow company, other person or entity accessing City's utility and lien information by way of the Canopy system. The parties agree that Webeheek will send a monthly invoice to City at City's address set forth above (or at such other address as City might in the future direct) and payment shall be made by City to Webeheck at Webeheck's address set forth above (or at such other address as Webeheck might in the future direct) within thirty (30) days of City's receipt of the invoice. 9. TERM OF AGREEMENT. This Agreement shall become effective as of the date set forth above and may be terminated by either party for any reason upon thirty 30 days' prior notice to the other party. Such notice shall be provided in writing by the terminating party to the non-terminating party at the address set forth above (or at such other address as has been provided to the terminating party by the non-terminating party). Upon termination, City shall immediately discontinue use of each and every component of the Canopy system and shall allow Webcbeck to enter upon City's premises during regular working hours on twenty-four (24) hours advance notice to retrieve all CPE. City furthermore agrees to return to Webeheck all training manuals and other Canopy related materials provided by Webeheek to City during the term of this Agreement. 10. PROHIBITED ACTIONS. City and its employees, agents and persons within its control shall not modify Canopy or any component part thereof in any manner whatsoever or disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any of the software or hardware provided by Webeheck. City understands and acknowledges that W~beheck has undertaken substantial efforts and has incurred substantial expenses in developing Canopy. The parties acknowledge and agree that, in the event that City or any of its employees, agents or persons within its control violates any of the provisions of this Paragraph 10, Webeheck will be irreparably harmed. The parties further acknowledge and agree that damages for any such violations will be difficult to measure. Accordingly, the parties agree that in the event of any such violations, Webebeck shall, in addition to any other remedies available to it at law or in equity, be entitled to obtain injunctive relief or other appropriate orders to res~a'ain any further violations. In addition, it is agreed that City shall be obligated to pay to Webeheck all of Webcheck Utility and Lien Information Access Agreement Page 3 its damages or, in the alternative at Webcheck's option, liquidated damages in the amount of Twenty-Five Thousand Dollars ($25,000) for each act that City or any of its employees, agents or persons within its control undertakes in violation of this Paragraph 10 for damages sustained as a result of such violations. In addition, the parties agree that City shall be required to pay all of Webcheck's legal fees and costs incurred with regard to obtaining enforcement of the terms of this Paragraph 10. 11. LIMITED WARRANTY. Webcheck warrants that the Canopy system, if properly installed and used, shall materially conform to its intended purpose of providing Intemet based utility and lien information delivery and retrieval services, provided that City performs its obligations set forth in this Agreement. The parties agree that City shall promptly notify Webcheck in writing of any failures or defects with respect to the Canopy system. Webcheck agrees to immediately correct such failures or defects to the extent that such failures or defects are within the control of Webcheck. Webcheck agrees to undertake reasonable efforts to ensure security of the Canopy system but cannot and does not guarantee absolute immunity from compromise. City may elect to provide additional security at City's expense and Webeheck is willing to provide security recommendations to City. 12. EXCLUSIONS. Notwithstanding the warranty provisions contained herein, Webeheck shall have no warranty obligation with respect to Canopy or any component part thereof which has been damaged by improper installation or operation by personnel not in the employment of Webcheck or by misuse, abuse or negligent use or repair or alteration or improper storage or which may have been damaged by use which does not conform to the specific or general insUuctions given by Webcheck or if City or any third party has modified or attempted to modify Canopy or any of its component parts or if the damage has occurred due to causes external to Webcheck, whether or not through the fault of City or if City has refused to implement changes recommended by Webcheck. 13. DISCLAIMER OF OTHER WARRANTIES. THE WARRANTY SET FORTH HEREIN SHALL BE EXCLUSIVE AND IN LIEU OF ALL OTHER LIABILITIES, OBLIGATIONS, CONDITIONS AND/OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED AND/OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY IMPLIED AND/OR STATUTORY WARRANTIES ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE), AND CITY HEREBY WAIVES ALL OTHER RIGHTS, OBLIGATIONS AND/OR WARRANTIES AND ASSUMES ALL RISKS Webcheck Utility and Lien Information Access Agmeraent Page 4 AND LIABILITIES IN RESPECT THEREOF. WEBCHECK MAKES NO WARRANTY THAT THE OPERATION OF CANOPY WILL BE ERROR-FREE OR WITHOUT INTERRUPTION. WEBCHECK DOES NOT WARRANT THAT THE CPE WILL OPERATE WITH ANY HARDWARE OR SOFTWARE OTHER THAN AS PROVIDED BY WEBCHECK. 14. MAXIMUM MONETARY LIABILITY FOR BREACH OF WARRANTY. Notwithstanding anything herein to the contrary, the maximum aggregate amount of money damages for which Webcheck may be liable to City under this Agreement resulting from any cause whatsoever shall be limited to the amounts actually paid by City to Webeheck under this Agreement. 15. HOLD HARMLESS. City agrees to indemnify and hold Webcheck harmless from any and all claima that might arise against Webeheck as a result of damages suffered by any third party as a result of the City's negligent dissemination of inaccurate utility and lien information passing to or relied upon by such third party. The City's duty to indemnify and hold harmless under this provision shall be limited in proportion to the City's relative negligence. 16. ATTORNEY'S FEES/VENUE/APPLICABLE LAW. The prevailing party in any suit or action between the parties arising out of this Agreement shall be entitled to recover from the other its costs and reasonable attorney's fees at trial and on appeal and venue shall lie in Kitsap County, Washington, unless the parties agree otherwise. The laws of State of Washington shall apply in any such proceedings. 17. NO ASSIGNMENT BY CITY. Neither this Agreement, nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by City and any purported assignment or transfer shall be null and void. 18. NON-WAIVER. Failure of either party to insist upon strict performance of the other party's obligations hereunder shall not be conslrued as a waiver of strict performance thereafter of all of the other party's obligations hereunder and shall not prejudice any remedies as provided herein. 19. SEVERABILITY. If any term or provision of this Agreement shall be found to be illegal or unenforceable, then, notwithstanding such a legal finding, such term will be enforced to the maximum extent permissible and the legality and enforceability of the other provisions of this Agreement will not be affected. It is expressly understood and agreed that each and every provision of this Agreement which provides for a limitation of liability or limited warranty is intended by the parties to be severable and independent of any other provision and to be enforced as such. Webcheck Utility and Lien Information Access Agreement Page 5 20. SIGNATURES. Each party represents and warrants that on this date the individual executing this Agreement is duly authorized to bind its respective principal by its signature below. 21. COUNTERPARTS. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which, when taken together, constitute one and the same document. The signature of any party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart. 22. ENTIRE AGREEMENT. Except as otherwise set forth herein, this Agreement constitutes the entire agreement of the parties and supersedes all prior agreements and understandings, written or oral. This Agreement may be amended only in writing executed by the parties. 1N WITNESS WHEREOF, the parties have signed this Agreement on the date set forth above. CITY OF B MERTO HINGTON WEBCHECK, INC. REINER, President CARY BOZE/vI_~xl, Mayor APPROVED AS TO FORM: Webcheck Utility and Lien Information Access Agreement Page 6 STATE OF WASHINGTON ) SS: County of~la~ ) On this day personaily appeared before me JOHN C. GREINER, to me known to be the President of WEBCHECK, INC., that executed the within and foregoing inslnunent, and acknowledged the insmunent to be the free and voluntary act and deed of the corporation, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument. GIVEN under my hand and officiai seal this~.._day of~ 2003. No-tmTy-~ib'li'c in fid for the gtate of Washington residing My appointment expires: STATE OF WASHINGTON ) SS' County o(~ ) On this day personally appeared before me(ma ·.. ~ , to me known to be the Mayor of CITY OF BREMERTON, W,k-nJI~Ibl~'l~ON,°who executed the within and foregoing instrument, and acknowledged the instmmem to be his free and voluntary act and deed of the CITY OF BREMERTON, WASHINGTON, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument. GIVEN under my hand and official seal thi~o3t~_day of~.a~,/2, 2003. Nt~tary ~[blic~m~an~d for the StYe of Washington residing My appointment expires: Webcheck Utility end Lien Information Access Agreement Page 7 ANNEX A CUSTOMER PREMISES EQUIPMENT (CPE) [List to be provided - Generally this Annex will describe the server to be provided by Webcheck and an Uninterruptible Power Supply (UPS) - but the UPS is only necessary if City does not provide one. The server will be connected to the UPS for power (and for communications if Webcheck provides the UPS).] Webcheck Utility and Lien Information Access Agreement Page 8 ANNEX B SERVICE LEVEL MINIMUMS 1. 99% AVAILABILITY: Webeheck guarantees a minimum of 99% availability of the Canopy service during normal business hours (8 AM to 5 PM, Monday - Friday). This means that the service will not be off-line for more than two and one-half (2.5) business days in each one year lime period. 2. SCHEDULED MAINTENANCE DOWNTIME: Webeheck may schedule server downtime during the hours of 11 PM and 6 AM. Scheduled downtime shall not exceed two (2) hours per week. 3. EXCEPTIONS: This minimum service level does not apply to situations beyond the immediate control of Webeheck. Such situations include, but are not limited to, extended power failure, upstream Interact access problems, Denial of Service (DOS) attacks, administrative error and disaster. 4. HARDWARE FAILURE: In the event of a server hardware failure, a replacement server will be sent to City via an overnight courier at Webcheck's expense. A Webcheck technician will guide City personnel through the process of replacing the server and the failed server will be immediately shipped back to Webeheek by City at Webcheek's expense. 5. SERVICE LEVEL CREDITS: Webebeck will compensate City for the total unscheduled downtime in excess of two and one-half (2.5) business days which occurs during normal business hours. To qualify for credits, City must report the downtime and Webeheck must confmn that the problem was its own. Credits shall be the greater of Fifty ($50) Dollars per hour or five times the average hourly fees incurred by City in the previous month. City must request credits in writing or by e-mail within ten (10) days of service restoration. Webcheck Utility and Lien Information Access Agreement Page 9